“dismiss the charges in Perry County.” This court has held that a “petition for postconviction relief attacking a judgment, regardless of the label placed on it by the petitioner, is considered pursuant to our postconviction rule, Criminal Procedure Rule 37.” Bailey v. State, 312 Ark. 180, 182, 848 S.W.2d 391, 392 (1993) (per curiam) (citing Williams v. State, 291 Ark. 244, 724 S.W.2d 158 (1987)). However, Rule 37 is “applicable only to such persons who are in custody.” Bohanan v. State, 336 Ark. 367, 370, 985 S.W.2d 708, 709 (1999) (emphasis added) (rejecting argument that a person on parole was “in custody” of the Department of Correction and holding that a petitioner must be incarcerated to be entitled to Rule 37 relief). Compare State v. Herred, 332 Ark. 241, 964 S.W.2d 391 (1998) (<HOLDING>). Here, at the time Wilmoth filed his petition
holding that the trial court had continuing jurisdiction over all subsequent custody orders once the trial court acquired jurisdiction holding that the trial court had jurisdiction to grant rule 37 relief where petitioner herred was in custody at the time the court ruled on his motion holding that a motion for rule 37 sanctions is dispositive recognizing for the first time that the habeas court had the power to retain the petitioner in conditional custody before granting relief holding that the district court and this court had subject matter jurisdiction over the defendants motion for modification of sentence based on amendment 706 even though the defendant filed the motion before march 3 2008 because the district court ruled on the motion after that date