*1 Kevin TAYLOR v. STATE Arkansas 02-545 Court of Arkansas
Supreme 16, 2003 delivered October Opinion *3 se. Appellant, pro Beebe, Weber,
Mike A. Gen., Gen., by: Jeffrey Ass’t Att’y Att’y for appellee. 12, 1991, in Ray Thornton, On December Justice. 91-617, case number Circuit Court
Crittenden County aof of to the of charge guilty possession entered plea appellant conviction, substance, sentenced was and upon appellant controlled of Correc- in the Arkansas Department ten years’ imprisonment from the sentence was released imposed In tion. appellant April 91-617, dis- for this offense was and his sentence case number of 1996. charged July entered on December plea Also appellant substance, Y a controlled a Class to the charge delivery
guilty After of his in case number 91-756. entry guilty plea, felony, of which received twenty-year imposition appellant was suspended. 11, 1997, the State filed a
On December seeking case num- revocation of suspension After a on the State’s trial court ber 91-756. hearing petition, and sentenced twenty years’ granted appellant of a controlled on the substance. charge delivery imprisonment trial court’s order and the court of appealed appellant affirmed the revocation in unpublished opinion. appeals 12, 2002, a writ On March filed petition seeking In his of habeas the Circuit Court of County. Jefferson that the trial court lacked jurisdiction appellant argued petition, held to an invalid conviction.” “being pursuant that the argued original sentencing Specifically, appellant case when it his sentence in number erred suspended imposition *4 He the of a controlled substance. 91-756 on charge delivery a of such sentence was that prohibited argued suspension Next, contended that the statute. twenty-year suspended appellant sen- in case number 91-756 the ten-year sentence imposed run 91-617 should have tence that he received case number that second sentencing concurrently. argued Finally, appellant erred when it him to twenty years’ sentenced imprisonment case account the time which he served in without into taking sen- twenty-year number 91-617. Appellant requested tence “dismissed or corrected.” 24, 2002, Circuit Court On County April Jefferson It denial is from this entered an order denying petition. appellant’s circuit court’s We reverse the denial appellant appeals. a writ of habeas for petition, grant appellant’s request appellant’s remand this case for resentencing. corpus,
We have
the rules we follow
explained
when re
for writ of habeas
viewing
corpus. Specifically,
Norris,
v.
Renshaw
337 Ark.
A writ of habeas
corpus
will issue where commitment is invalid on
its face or where the
court lacked
subject-matter juris-
See,
State,
v.
e.g., Sawyer
diction
to enter or
modify
sentence.
Lockhart,
Mackey
(1997),
307 Ark.
321,
* * * (3) the circuit court shall have general jurisdiction the trial of all indictment, offenses which bemay prosecuted and all prosecu- tions and actions. . . penal .[.] Id. Based upon foregoing statutory we conclude that provision, the Crittenden Circuit Court had County jurisdiction over case *5 number 91-756 and had jurisdiction accept appellant’s guilty plea
455 that the trial court contention in that case. Accordingly, entered without merit. caseis over lackedjurisdiction appellant’s of the merits appel before considering Additionally, brief, State that' argues that in its we note lant’s appeal, his habeas the issues contained have raised should appellant its In of direct proposition, his support during appeal. petition State, Ark. cites Hutcherson State of a writ Hutcherson, was seeking a criminal defendant In been affirmed on had appeal. after his conviction habeas corpus over had no jurisdiction that the circuit co urt Hutcherson argued had violated and state authorities the federal conviction because his was Hutcherson’s Id. determined that argument federal act. We which was not that his jurisdictional, merit and argument, without direct Id. raised (emphasis have been during appeal. should Hutcherson, for writ of noted that a we also added). In a criminal for an cannot serve as substitute appeal habeascorpus Id. conviction. Hutcherson,we con articulated in of the Mindful principles issues Specifically,
clude that the State’s argument misplaced. or of void involve allegations habeas raised appellant’s void will treat have said that we allegations sentence. We illegal that we treat similar to way problems sentences illegal Ark. See Flowers subject-matter jurisdiction. State, 337 see Renshaw v. also (2002), detention for have noted that we (1999). Additionally, S.W.2d 515 a writ habeas time is what illegal period precisely Flowers, Accordingly, correct. supra. appel designed sentence, and because of an raises allegations lant’s petition for writs of are have held that such we allegations appropriate the merits of consideration of will our proceed corpus, petition. appellant’s that first argues point appeal, in case number 91-756 and commitment order entered
judgment invalid. December 1991 was facially Specifically, the trial court without authority suspend argues in case number 91-756. Appellant of his sentence imposition that because his sentence was suspended further improperly argues order, the invalid commitment in a judgment facially the terms of trial court was without authority order which was and commitment in the 1998 judgment revocation the State’s petition. after trial issued granted *6 Arkansas, We note that in entirely matter of statute. State v. Stephenson, other than in (2000). accordance with the Sentencing may statute in effect at the time of the commission of the crime. Id. Where law does not authorize the particular pro court, nounced a trial that sentence is unauthorized and illegal, and the case must be reversed and remanded. Id.
We now consider whether the and commitment judgment order entered in case number in December 91-756 of 1991 was invalid. contends that the trial facially court lacked Appellant to the sentence that it entered in authority case number 91-756. further contends that the trial Appellant acted without the order entered case authority, number 91-756 was invalid.
The order that sentenced appellant to challenges appellant twenty years’ imprisonment suspended imposition sentence. that the trial argues court lacked Appellant authority sentence. In suspend imposition support argument, cites Ark. Code Ann. 5-4-301 appellant (a)(1)(F) 1991). (Supp § This statute in relevant provides part: (a)(1)A court shallnot suspendimpositionof sentenceasto a term nor imprisonment the defendant on place for the probation offenses: following
[*] [*] (F)Drug relatedoffensesunder the Uniform ControlledSub- stancesAct 5-64-101 et.seq____[.] §
Ark. Code Ann. see alsoArk. 5-4-301(a)(l)(F); Code Ann. 5-4- § 104(e)(1)(F) 1991). (Supp. 91-756, In case number the case in which received
the twenty-year suspended appellant pleaded guilty of a controlled delivery substance. According information 91-756, filed in case number the controlled substance that appel- lant delivered was cocaine. These actions were prohibited by Uniform Controlled Substance Act. Ark. Code Ann. 5-64-
After statutory reviewing foregoing provisions, lacked that the trial court imposi conclude suspend number 91-756 and that the case tion commitment order entered in case facially judgment delivery guilty invalid. appellant pleaded Specifically, *7 substance, Y which a Class was by controlled Felony, prohibited Act. The trial court was Controlled Substance the Uniform to a term of statute to sentence therefore appellant required to a term of than sentencing appellant imprisonment. Rather sentence, court sen that trial and executing imprisonment term and to a of imprisonment tenced twenty-year appellant trial court lacked that sentence. The suspended imposition sen imposition appellant’s statutory authority suspend Therefore, Code Ann. 5-4-301 (a)(1)(F). judg tence. Ark. § in in number commitment order entered case 91-756 ment and of 1991 was invalid. December facially in conclude that habeasrelief is
Additionally, proper to have the case in when the State petitioned from case number 91-756 sentence suspension appellant’s revoked, and errone the State’s the trial court granted Because the the invalid sentence. twenty-year ously imposed was order entered in of 1998 and commitment January judgement and commitment order invalid based on facially judgement that that the sentence entered in we conclude twenty-year Because the trial court is currently serving illegal. appellant its imposition exceeded statutory authority by suspending because the trial court erred appellant’s twenty-year invalid a sentence from facially judgment in imposing order, trial order we reverse the court’s denying commitment and remand this case for resentencing. appellant’s that 294 (1992) (holding Bangs executed, sentence even if the is illegal, though partially original correct may it). the sentencing contends that second on his appeal, appellant point 91-756 and 91-617 that he received in case numbers sentences Based on this argument, to have been served concurrently. were his sentence was that 1998 when contends in suspended appellant revoked court should have in case number 91-756 trial number 91-617 from the time which he served in case deducted is based which it argument years imposed. Appellant’s twenty on the that sentences run unless principle multiple concurrently the court orders the sentences to run See Ark. Code consecutively. Ann. A review of the 5-4-403(a) 2001). (Suppl. judgment commitment entered in orders case numbers 91-617 and 91-756 does not reveal whether the trial court intended that appellant’s Thus, sentences were to be served consecutively concurrently. 5-4-403, to Ark. Code Ann. we must that pursuant assume sentences were to have been served We conclude concurrently. erred trial court when it imposed appellant’s suspended case in number 91-756 without into consideration taking the time which served in case number 91-617. Accord- appellant remand and the trial ingly, upon court should reduce resentencing case number 91-756 the time which noted, served in case number 91-617. As appellant previously December of was sentenced to ten appellant years’ impris- onment in case number 91-617. Appellant paroled April 1993, and had his sentence in case number 91-617 discharged of 1996. July
In his final point appeal, argues *8 case is in governed articulated Hunter v. by principles Hunter, Ark. we were asked to review various sentences on a criminal defendant. The imposed of the which portion relies opinion involves the upon appellant of two imposition sentences as for competing one punishment Hunter, crime. Id. In after the discussing applicable statutory we concluded that the provisions, trial court erred. Id. Specifically, we wrote: was an
Appellant indefinite sentence to given the ArkansasJuvenile and, time, Training School at the same the trial court attempted suspend of sentence. The imposition crime was committed on April 29, 1980, effect, and the statutes then in Ark. Stat. Ann. 41-803(4) and 41-1204 1977) did not (Repl. authorize concurrent imposi- tion anof indefinite sentence with a along of suspension imposition of an imprisonment sentence. The trial court could have provided for a sentence to imprisonment followed as to suspension an of additional term imprisonment, Stat. Ann. 41-803(4) (Repl. or it 1977) could have for provided of of suspension imposition a sentence of imprisonment and as an additional condition require confinement in a detentional facility up Ark. Stat. days. However, Ann. (1), (3) 1977). 41-1204 (Repl. the trial court could not an indefinite sentence give with coupled of suspension Thus, court could one validly grant the of sentence. imposition the but both. One was judgment the other or judgment and other was the of of a sentence suspension imposition served. We The sentence imposed of sentence. imposition dual judgments a court unauthorized grants hold that when served, and the other is and one is imposed sentence oflaw by operation there is an election suspension actually elected to order the sentence court has Thus, the definite other is void. imposed. of the suspension imposition School was valid Training was void. the sentence of imprisonment Hunter, added). supra,(emphasis on the language, argues
Based foregoing appellant on felony that “when discharged ten-year-class-C appellant bound 16,1996 he was no case number 91-617], longer July [in case number the twenty year suspended imposition [in elected law the trial court by operation 91-756] argument the ten class C felony.” year Appellant’s case, Hunter, in unau unlike Specifically, appellant’s misplaced. now not entered. In the case before dual were thorized judgments us, cases. The void were entered two separate two sentences 91-756. This sentence entered in case number sentence was in case sentence entered and distinct from valid is separate were not unauthorized dual Because judgments number 91-617. cases, occurred. no oflaw either of operation entered in appellant’s oflaw because there was no election by operation Additionally, cases, sentence in completion involved from to relieve does not operate case number 91-617 the crime to which pleaded guilty a valid sentence for serving third point case number 91-756. Accordingly, appellant’s merit. without appeal *9 brief, Rule 26.1 of the cites his reply Procedure, be seems to of Criminal arguing
Arkansas Rules been because habeasrelief should have granted that his be sentence could not he had known that his if twenty^year 91-756, his he would have withdrawn in case number suspended We cannot consider argument plea.1 appellant’s guilty part: provides 25.1 1 Rule raise new brief. See attempting argument reply City of Barton,
Dover A. G.
342 Ark.
first time on appeal).
Reversed and remanded. concur. JJ., Brown,
Glaze, Imber, Justice, The circuit court’s deci- concurring. Tom Glaze, sion to Kevin deny for a writ of petitioner Taylor’s request 12, 1991, should be affirmed. December On clearly (a)A guilty defendant withdraw his or her of or nolo contendere aas matter may plea right of before it been has the court. A defendant not withdraw his by accepted may guilty or her right or nolo contendere as matter of it after has been plea accepted court; however, the judgment, before the court its discretion allow entry may injustice defendant to withdraw his or her correct a manifest if it is fair and plea just giving to do due so, consideration to reasons advanced defendant in of his or her motion and prejudice granting motion would support cause the reason of actions taken in reliance the defendant’s prosecution by upon guilty A or nolo contendere not be rule withdrawn under this after plea. plea may judgment. entry (b) guilty Withdrawal of a or nolo contendere shall deemed to be plea necessary injustice correct manifest if defendant to the satisfaction of proves that: (iv) he did charge or she not receive the or sentence concessions aby contemplated agreement prosecuting failed seek or not to plea attorney oppose agreement; concessions as in the promised plea (v) he or did charge she not receive the or sentence concessions contemplated by agreement in which the trial court had indicated its concurrence and the plea did receiving defendant not affirm the after advice that the court had withdrawn plea its indicated concurrence and after an either affirm or withdraw the opportunity plea. Id. *10 of a number 91-756 to case possession criminal guilty
Taylor pled — He a Y intent to deliver Class felony. with controlled substance the On sentence. a twenty-year suspended imposition was given to 91-617 case number in criminal guilty same day, Taylor pled substance, and sentenced a Class C controlled felony, of a possession his horn ten-year was discharged to Taylor ten years’ imprisonment. release, and case. discharge in the 91-617 Following Taylor’s sentence in case his terms of was found violating probation guilty Taylor for 91-756, cocaine and associating possess number attempting then revoked twenty- The trial court Taylor’s known criminals. with 91-756. given year suspended decision, trial court’s revocation the Taylor appealed insufficient; evidence was was that the State’s sole argument unpublished rejected argument Taylor’s appeals Oct. CACR 98-363 Ct. (Ark. App. opinion. Taylor filed a se pro After 1998). prison, Taylor returning which the trial court writ of habeas brief requesting corpus, ensued. denied. This appeal below, that, and in this
Taylor’s major argument appeal, offense, the trial court when he 91-756 pled guilty drug had sus- erred because it no twenty-year authority impose because the offense to which drug pled guilty pended time, 18, 1991, Y At that December was Class felony. the courts from law statutory suspending imposition prohibited did the law in 1991 sentence for a Class Y Nor felony. empower related courts to a defendant on offenses place probation drug Substances Act. See Ark. Code under Uniform Controlled words, trial In other 1991).1 Ann. 5-4-301 (a)(1)(F) (Supp. a term court was to sentence required Taylor imprisonment, since not be other than may suspended effect the time of the commis- in accordance with the statute in at 229, 9 sion of crime. State Stephenson, that, court had no submits because trial (2000). Taylor sentence in the sentence suspended invalid, and a writ of habeas should facially illegal, that, to correct sentence. He issued Taylor’s illegal urges language prohibiting Act 192 such sentences removed suspended sentences. probation *11 void, is his sentence this court should order immediate Taylor’s release. that,
The
correct
is
majority opinion
deciding
although
him,
to favor
suspended
given Taylor appeared
However,
sentence was
suspended
(and is)
is
illegal.
corpus
nor should he be released from
as
Taylor’s remedy,
custody,
asks. The law is well
Taylor
settled that a writ of habeas
will
not be issued as a substitute for
relief.
v.
post-conviction
Mackey
Lockhart,
321,
Here,
Ark.
819
307
S.W.2d 702 (1991).
Taylor’s
1991,
and
conviction
sentence were
when our
imposed
statu
law
a
that
circuit court could
tory
correct an
provided
sentence at
time.
Ark.
Code Ann.
16-90-lll(a)
(1991);
§
State,
also
v.
see
Ark.
310
In the circumstances this presented by Taylor’s illegal the court is correct in and this reversing remanding matter to the trial court in accord with 16-90-111 so that the (a), § court can a sentence in with accordance Ark. Code Ann. 5-4-401 and (a)(1) The 5-4-104(c)(1) 1997). (Repl. majority § court is § however, to mention habeas wrong, which I will corpus, later. explain case, this the trial court should remanding be directed to credit served, for the
give Taylor since record imprisonment to reflect the trial court never ruled that case appears numbers 91-617 and 91-756 would run the sen- consecutively, causing tences in the two cases run concurrently.
Before I want offer ending the bench and bar opinion, a caveat. there is a clear conflict Presently, between this court’s Rule 37 and 16-90-111 This court (a). stated in Reeves plainly State, 339 Ark. 16-90-111 has (1999), (a) been the time limitations in Ark. R. P. superceded by Crim. Rules 37.1 37.2(b) which (c), relief provide postconviction that all 37.2(b) Rule custody. provides a defendant when a from sentence relief imposed for postconviction grounds court, sentence illegal illegally claims including circuit See also Rule Rule 37. in a under must raised imposed established 37.2(c) Rule ninety-day 37.2(c). Rule 37.1(a)-(d) from the date must be filed within which limitation sentence was pronounced.2 and a are Rule 37 jurisdictional, provisions foregoing relief on an untimely circuit court cannot grant postconviction State, (2000); See Hill
petition. Harrisv. In the present *12 37, case, under been file Rule if had to Taylor required he have barred Rule’s by would been procedurally ninety-day been because his sentence had limitation. illegal imposed Only 16-90-111, the defense under which was in 1991 was availed § and to sentence at effect then challenge illegal permitted Taylor time. any that, conclusion, be Rule
In it should stated while 37 briefly to correct an sentence if remedy illegal provides postconviction limitations, this within certain time court’s case law has sought to an at to correct allowed illegal prisoners to time a sentence is void and similar because such problems in that the court reviews such allega subject-matter jurisdiction an made the trial tions whether or not was to court. See objection 494, Norris, 515 see also Renshawv. 337 Ark. (1999); State, v. Lambert Bangs, supra; Lambert, this first where It surfaced this
(1985). appears analysis that, held where a trial court exceeded its when court authority an it became subject- imposing illegal question which could be waived The matter jurisdiction, parties. case was Lambert wrong. course, to a circuit court does have criminal
Of try words, In the trial casesand to sentences. other court this impose case had jurisdiction Taylor’s clearly subject-matter concerning our and light In confusion this court’s case law Rule application federal when it that a rule review to recall state noteworthy only prevents procedural (8th regularly Dormite, 774, 781 rule is and See Dixon v. 263 F.3d established followed. firmly (1991) (state 2001); Georgia, rule constitutes 411, 424 Cir. seealso Ford v. 498 U.S. procedural regularly if it was established and followed at bar federal review “firmly adequate court”) the time it was the state applied by sentence. As a the Arkansas constitutional writ of consequence, is not here since a writ will issue applicable (1) where a commitment is invalid on its face or where the (2) court lacked to enter subject-matter or jurisdiction the sentence. See modify Sawyer It S.W.2d 843 is true that a was be in remedy required The to correct sentences. General place Assembly, by 16-90-111, and court by enacting subsequently promulgat- Rule 37 in see ing Rule provided remedy. particular, 37.2(c) which authorizes such postconviction remedy peti- if tioner filed such within or request sixty-day ninety-day periods in the rule. provided
One for Rule major 37.2(c) bring purposes remedies, some so such finality postconviction proceedings would not arise after the many years direct had petitioner’s appeal too, courts, ended. The federal been have restricted by one-year limitations in the period provided Anti-terrorism Effective court, Death Act. To obtain habeas relief Penalty in federal remedies, must exhaust state see28 U.S.C. petitioner 2244(d)(1). limitations one-year can tolled period timely of state other collateral proper filing postconviction proceedings Gammon, can be as tolled well. equitably Cross-Bey F.3d 1012 (8th Cir. 2003). *13 conclusion,
In I out that some of these concerns point Renshaw, here were touched on expressed dissent in my 494, While the (1991). court held majority there is no a time limit on writ of habeas the pursuing corpus, still is the show trial court not petitioner required did have subject-matter this case to jurisdiction sen- impose Taylor’s so, tence. Even this court’s Rule 37 grants clear petitioner an a circuit remedy correcting illegal court has stands, As the jurisdiction. law now limitation lan- existing in Rule has no effect guage 37.2(c) whatsoever. This court should either do with Rule 37 or decide away henceforth that the Rule 37 will be is a There where provisions recognized. cases legion court held has that Rule 37 relief is and has dismissed jurisdictional because the were late in their within the petitioners filing requests offer some The court needs to clarity time rule’s requirements.3 no time case law. There is better its procedures postconviction than present. I write to
Robert L. Brown, Justice, concurring. empha- Procedure 37.2 that while Arkansas Rule Criminal size our limits for relief superseded time postconviction prescribes Ann. 16-90- with sentences Code state statute dealing illegal [Ark. not and of the writ it does cannot (1987)], supersede privilege to our citizens under Arkansas Con- of habeascorpusguaranteed the Arkansas Article section Constitution stitution. provides: not be “The of the writ of habeas shall corpus suspended privilege rebellion, in case of the General insurrection except by Assembly, it.” Rule 37 is a invasion when safety may public require rule that not enacted the General (1) was Assembly, court-adopted “rebellion, insurrection or invasion.” does (2) pertain Rule 37 does not a citizen’s Accordingly, suspend any way to habeas relief. corpus privilege Norris,
We said as much in Renshaw S.W.2d 515 whether habeas relief was addressing corpus limits, time said: subject are then becomes whether there time limits on question when a must file a writ of habeas based on an illegal lack óf Certainly, sentence. cannot waive court’s petitioner And Arkansas subject-matter jurisdiction. neither the Constitution nor state statutes a time limit on a writ of habeas place pursuing Indeed, to do contravene the so would corpus. proscription against the right to habeas suspending corpus. at 518. further
337 Ark. at We underscored court Renshaw that when circuit imposes so, to do that raises the whether without authority question had to enter sentence. such jurisdiction subject-matter *14 (10-9-03) (the designated is not for See Goins Goins CR02-972 opinion an this court hands down curiams but it is of how example routinely per publication, 37). enforcing the in Rule the attached Goins limitations opinion.
That issue the before us in this case. precisely for writ of habeas was filed the time corpus by Taylor limits beyond fact, relief. the postconviction Regardless constitutional of habeas is not those remedy to time constraints. To corpus subject hold otherwise would be to the of habeas suspend privilege corpus which the constitution directs we cannot do. specifically reasons,
For these I the with disagree concurring opinion this court to urges subject habeas to the privilege corpus same time constraints relief placed postconviction under Rule 37.2. To do that be would to overrule Renshaw Norris, writ all for filed supra, after the suspend petitions Rule 37.2 limits. It is clear cannot do this without an amend- ment the Arkansas Constitution.
Moreover, to truncate the of habeas would privilege corpus an in cases where a injustice circuit court sentenced perpetuate a defendant a term excess its years statutory authority. Were we to hold that a defendant no had after the recourse Rule 37.2 times of 60 or 90 days (following days appeal) (following had trial) guilty plea defendant would be left passed, without a state affairs, That would be remedy. a horrendous state of when our state constitution especially and memorializes guarantees the time-honored of habeas for remedy detentions. corpus reasons,
For these I concur with majority opinion. Imber, J., joins. It is Justice, concurring. para Annabelle Clinton Imber,
mount to
that Article
Section 11
recognize
of the
Constitution of Arkansas
of the
guarantees
efficacy
for
ofwrit
and does not
a time
corpus
limit on
place
exercise
of one who is
right
detained without
being
lawful
”
Indeed,
issuance of the writ.
apply
Arkansas Constitution
writ,
disallows
of the
expressly
suspension
General
“except
rebellion,
invasion,
in case of
Assembly,
insurrection or
when the
it.” Ark.
Art.
public safetymay
Const.
require
11. Review under
the doctrine of habeas
is limited
two
claims:whether the
trial
court lacked
or whether the
jurisdiction
petitioner’s
judgment
commitment order was
Norris,
invalid on its face.
Flowersv.
E.g.,
467
one
sentence is
held that an illegal
have consistently
We
537,
State,
v.
290 Ark.
face.”
Abdullah
its
E.g.,
“on
illegal
which
is a
sentence
void
313
An
sentence
(1986).
illegal
S.W.2d
720
it.
v.
to
SeeRenshaw
lacked
the trial court
authority
A
Norris,
494,
valid sentence may
Ark.
S.W.2d 515 (1999).
337
989
executed,
sentence, even
an
but
illegal
be modified once
not
State,
executed,
v.
286
Lambert
corrected.
may
though partially
an
408,
for
remedy
illegal
238 (1985).
692 S.W.2d
Ark.
from
and release
of all related
dismissal
sentence
proceedings
sentence, even
rule is
original
the general
imprisonment;
executed,
corrected
bemay
though partially
235,
An
State,
294 (1992).
v.
310 Ark.
835 S.W.2d
court. Bangs
void,
is not
a lawful
absolutely
conviction
excessive
upon
re
to be
on habeas
entitle the
discharged
corpus.
so as to
prisoner
Bonner,
Where error nothing court may and relates appellate innocence only punishment, State, v. 352 it in lieu Harness remanding. correct of reversing 437, 335, Fountain, v. 350 Ark. (2003); 101 235 State Ark. S.W.3d State, 447, Ark. Thomasv. 349 79 S.W.3d 411 (2002); 88 S.W.3d 68, Norris, State, Robertsv. 324 Ark. Renshaw v. (2002); supra; 347 State, v. Ark. 192 Richards 309 919 S.W.2d (1996); Bangs, supra; State, 328, 133, v. 257 Ark. S.W.2d 155 (1992); 827 McConahay 887 516 S.W.2d (1974). for the have three traditional avenues
Convicted defendants
correct sentence
correction
sentence:
illegal
petition
16-90-111,
Ann.
for
Ark. Code
petition
postcon-
pursuant
37.1,
Rule
relief
to Criminal Procedure
viction
pursuant
for writ
It is
delineate among
of habeas
important
corpus.
allows for
remedies and to
those
emphasize
only
at
time.
correction of an
remedies,
held that
we have consistently
In all three available
for the
at
the issue
be raised
trial as
may
no objection
necessary
relief
in a
first time on
postconviction
appeal
its
in sentenc-
excess of
because circuit
acting
hence,
a matter of
matter jurisdiction;
can be likened to
subject
ing
State,
Harnessv.
Mayes
can be raised sua
supra;
the issue
sponte.E.g.,
State,
State,
26,
v.
349
Thomas
(2002);
351 Ark.
Arkansas Rule of Criminal Procedure 37.2(b) allows for court, an correction of sentence the trial a illegal by including sentence to a that the imposed pursuant guilty, plea provided claim is addressed to the court time with the constraints set by rule.1 Rule a 37.2(c) mandates time limit of ninety days following a or the issuance of the guilty sixty plea days following appellate a mandate when seeks to correct an petitioner sentence or a illegal sentence in an manner. Time illegal limitations imposed imposed nature, in Rule are 37.2(c) and a jurisdictional circuit court cannot relief an grant of the merits untimely petition regardless State, 246, of claims contained in it. Bentonv. 325 Ark. 925 S.W.2d State, 614, 401 Hamilton v. (1996); 323 Ark. State, 599, v.
(1996); Harris
318 Ark.
469 relief to cor- a seek may postconviction Finally, petitioner There a for writ rect an sentence via corpus. illegal petition for habeas distinction between is well-acknowledged petition relief under Rule 37.1 and and a for corpus postconviction Ark. 313 Sargent, Ark. Code Ann. 16-90-111. Waddle the State’s that the S.W.2d 539 (1993), rejected argument virtue barred in a habeas proceeding procedurally petitioner of a to correct of his of denial motion appeal State, 322 Ark. been dismissed. In Cothrinev. having S.W.2d cannot that a writ of habeas we reiterated (1995), corpus for relief be substituted postconviction are 37.1 filed remedies of 16-90-111 Rule post-conviction court, made correct error there. in the trial seeking original hand, is filed in the on the other Id. A habeas proceeding, based incarcerated and is where the upon circuit court petitioner lawful detained without being theory petitioner Lockhart, Id.; see also authority. McConaughy *17 S.W.2d 141 (1992); S.W.2d 166 George 37.1, followed, it Rule matter statutory, No path this court has for writ of habeascorpus, consistently in does rule announced Lambert restated the important “[i]t courtwas wasmadeat thetimesincethe acting not matter thatno objection thatwasa matter subject jurisdiction in excess its authority questionof 408, 409, 692 which cannot be waived parties.” when a added). 239 (1985) Accordingly, (emphasis excess its no objection necessary court acts in authority, is a matter of in of its below because court excess acting the court. to correction by matter subject jurisdiction subject sentence to a the correction of likening illegal led confusion has to some matter of matter jurisdiction subject the court of have even this court and appeals consistently though its the sentence of a court outside acting restated the principle reason, it is to correction. For necessary subject authority that we at time a writ of habeas can issue any that while clarify who on a fileshis to correct an imposed petitioner incarcerated, which he is in the court in the county Ark. Code Ann. 16-90- for relief under Rule 37.1 and petitions relief for those whereas 37.1 person custody, probation provides persons Id. Id. do not Rule 37 and its time Thus, definition not apply. custody. requirements court, and, thus, 111 are filed in the trial are original subject constraints inherent Rule 37.1 and jurisdictional 16-90-111. J., joins. Brown,
Richard BERRY CITY FAYETTEVILLE CR 03-381 Court Arkansas
Supreme 16, 2003 delivered October Opinion