598 S.W.3d 835
Ark.2020Background
- In October 2016 Barnett was charged with second-degree escape; he pleaded guilty and was sentenced on August 22, 2017.
- The sentencing order imposed an aggregate 216-month term and expressly awarded 130 days of jail-time credit.
- The prosecutor’s written sentence recommendation (in the record) also reflected 130 days of jail-time credit.
- In October 2019 Barnett, pro se, filed a Rule 60(b) motion seeking a nunc pro tunc correction to award 312 days of jail-time credit.
- The circuit court denied the Rule 60(b) motion, finding Barnett had been serving a parole-revocation term in the DOC rather than being in pretrial custody for the escape charge.
- On appeal the supreme court affirmed: there was no clerical error to correct, Barnett’s real claim was a challenge to the legality of the sentence requiring a Rule 37.1 petition, and that remedy would have been subject to a 90-day timeliness rule which Barnett missed.
Issues
| Issue | Barnett's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the sentencing order contains a clerical error correctable under Rule 60(b) to increase jail-credit from 130 to 312 days | The 130-day credit on the sentencing order is a clerical mistake; court should enter a nunc pro tunc order awarding 312 days | The sentencing order correctly reflects the plea agreement and prosecutor’s recommendation of 130 days; no clerical error exists | No clerical error; Rule 60(b) relief denied |
| Proper procedural vehicle and timeliness for challenging credit calculation | Relief via Rule 60(b) to correct sentence | The claim is actually an attack on the legality of the sentence and must be brought under Rule 37.1 within the 90-day limit | Claim is substantive (Rule 37.1) and, filed in Oct 2019, was untimely; denial affirmed |
Key Cases Cited
- McArty v. State, 2020 Ark. 68, 594 S.W.3d 54 (standard of review for denial of postconviction relief)
- Lewis v. State, 2017 Ark. 211, 521 S.W.3d 466 (nunc pro tunc/correction of clerical errors)
- State v. Rowe, 374 Ark. 19, 285 S.W.3d 614 (limits on making the record speak what it did not speak)
- Cason v. State, 2016 Ark. 387, 502 S.W.3d 510 (circumstances where jail-credit awarded at plea but omitted from judgment)
- Cooley v. State, 322 Ark. 348, 909 S.W.2d 312 (illegal-sentence claims must be raised under Rule 37.1)
- Gipson v. State, 2019 Ark. 310, 586 S.W.3d 603 (appellate court will affirm when trial court reached right result even for wrong reason)