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McGhee v. State4/14/2005
NOT DESIGNATED FOR PUBLICATION
Brian Curtis McGhee was convicted in Grant County Circuit Court of driving while intoxicated, third offense, speeding, fictitious tags and drinking on the highway. He was sentenced to ninety days in jail, a fine of $2,095.00, and ordered to pay court costs of $300.00. The judgment was entered July 2, 2002. New counsel filed a motion for post-conviction relief in which he requested a new trial, on July 9, 2002, and, according to the appellant's brief, he also filed a notice of appeal at about the same time. The appeal was later dismissed. After a hearing conducted July 23, 2003, the trial court issued an order on August 14, 2003, denying the motion. Appellant's notice of appeal from the denial of his motion for a new trial was filed August 15, 2003. Appellant asserts that the trial court erred in failing to find ineffective assistance of counsel. However, we cannot reach the merits of appellant's argument since his notice of appeal was not timely filed and we must dismiss the appeal.
The State asserts that appellant's motion for post-conviction relief was deemed denied when the trial court neither granted nor denied the motion within thirty days after the motion was filed on July 9, 2002, citing Ark. R. Crim. P. 33.3(c) and Ark. R. App. P.-Crim. 2(b)(1). We agree. Since appellant's notice of appeal from denial of the motion was not filed until August 15, 2003, it was not timely. Filing of a notice of appeal is jurisdictional. Wright v. State, ___ Ark. ___, ___ S.W.3d ___ (Nov. 18, 2004). The trial court did not have jurisdiction to later hear and rule on the motion. Appellant argues that Ark. R. Crim. P. 33.3 is inapplicable and that Ark. R. Crim. P. 37.2 should determine the timing of the notice of appeal. Appellant's motion was not a petition for post-conviction relief under Ark. R. Crim. P. 37.1. While appellant's motion asks for post-conviction relief, it was not filed as a petition for relief under Ark. R. Crim. P. 37.1 and never references the rule in the motion. In fact, appellant asserts he filed his notice of appeal at the same time he filed the motion. Arkansas Rules of Criminal Procedure 37.2(a) prohibits the circuit court from entertaining a proceeding under the rule while a direct appeal is pending. Haynes v. State, 311 Ark. 651, 846 S.W.2d 179 (1993). To determine what the motion was, we look to content and substance. Id. at 654, 846 S.W.2d 181. Here, the motion was clearly a motion for a new trial, and Ark. R. Crim. P. 33.3 does apply to determine the timing of the denial of the motion.
Appellant cites to Chavis v. State, 328 Ark. 251, 942 S.W.2d 853 (1997), and Dodson v. State, 326 Ark. 637, 934 S.W.2d 198 (1996), as supporting his assertion that the deemed-denied provision of Ark. R. Crim. P. 33.3(c) is not applicable to a motion for new trial that is based upon ineffective assistance of counsel. However, appellant misconstrues those cases. We recently addressed this issue in Maxwell v. State, ___ Ark. ___, ___ S.W.3d ___ (Nov. 4, 2004). As we pointed out in Maxwell, the holding in Chavis and Dodson was that a deemed- denied ruling in a case based upon ineffective assistance of counsel is simply not a sufficient order for review on appeal. We reiterated in each of those cases that the motion was deemed denied. Neither decision would excuse a defendant from compliance with the procedural requirements for the method chosen to assert his claim.
Appellant contends that he is effectively denied an opportunity for a hearing if Ark. R. Crim. P. 33.3(c) were to apply. It is true that the trial court must have the hearing within the thirty-day time limit or lose jurisdiction. Wright, at ___, ___ S.W.3d at ___. While we review clai
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