Lead Opinion
hBy per curiam opinion handed down on January 14, 2016, this court denied Brian F. Ward’s pro se petition for a -writ of error coram nobis. However, in the same opinion, this court held that Ward’s sentence, fifteen years in the Arkansas Department of Correction plus fifteen years suspended imposition of sentence, was illegal. We remanded this case to the circuit court for resentencing. On remand, the circuit court imposed the same sentence and Ward appealed. He argues that the circuit court erred in refusing to follow this court’s order and mandate in Ward v. State,
Upon remand, a sentencing hearing was held. Ward asserted that when the supreme court handed down its decision, pursuant to Arkansas Supreme Court Rule 2.3, the State had eighteen days in which to ask for a rehearing to correct any error of law or fact, and the eighteen days had elapsed without a petition for rehearing being filed. Consequently, he l2argued further, the mandate rule prohibited the circuit court from deviating from the appellate court’s mandate. Accordingly, the supreme court’s decision that Ward’s sentence cannot exceed twenty years had to be followed because of the mandate rule.
The State asserted that Ward’s status as a habitual offender was acknowledged by the supreme court in its decision. It argued that, consequently, it would not be “inconsistent” for the circuit court to sentence Ward up to the maximum allowed by statute: thirty years.
The circuit court agreed with the State. It asserted that “the supreme court, with all their power, cannot change the statute.” It then “remiposed” the sentence that the supreme court had held was illegal. The circuit court stated further that
I understand there is some question about whether or not I am or am not following the supreme court’s mandate. And Again, they created this problem. They’re gonna have to explain what it is ... And I may be disregarding the mandate. They’re going to have to tell me that. My understanding of the mandate is I’m required to resentence him within the statutory range, and the statutory range for a Class B felony with a small habitual is five to 30 years, not five to 20 years.
On appeal, Ward argues that the circuit court erred in failing to follow the mandate. He contends that, when this court remands a case with specific instructions in its opinion, the circuit court has no jurisdiction to deviate from our mandate; the circuit court only has authority to execute the mandate. Accordingly, the circuit court may not examine our decision for any purpose. Citing Furnas v. Kimbrell,
13It is obvious from the record that, the circuit court looked behind our opinion in Ward I. This exceeded the circuit court’s jurisdiction. On remand, the circuit court was vested with jurisdiction only to the extent conferred by our opinion and mandate. Dolphin v. Wilson,
Reversed and remanded.
Notes
. In our review in Ward I, we had before us the circuit court’s order stating, [T]he Defendant ' had a prior conviction for attempted capital murder in case 60CR-92-3202 and the judgment and commitment order which likewise suggested that Ward had only a “prior” conviction for attempted capital murder. To be a habitual offender under Arkansas Code Annotated'section 5-4-501, a'defendant had to commit more than one felony.
Dissenting Opinion
dissenting.
The sole issue on appeal is whether the circuit court exceeded its authority when it resentenced Ward. I would hold the court did not exceed its authority; therefore, I dissent. The mandate, in its entirety, reads as follows:
This post conviction criminal appeal was submitted to the Arkansas Supreme Court on the record of the Pulaski County Circuit Court and briefs of the respective parties. After due' consideration, it is the decision of the court that the judgment of the circuit court is affirmed in part and remanded for resen-tencing in part for the reasons set out in the attached opinion.
it is clear to me that the mandate remanded the matter “for resentencing,” which is precisely what the circuit court did in this matter. The mandate references the opinion, but Ronly for explanation of “the reasons” it was remanding. The mandate did not state the circuit court was to resentence within a certain parameter. Nor did it state the circuit court was to resentence “consistent with our opinion,” language contained in the Dolphin case cited by the majority. Dolphin v. Wilson,
Even if we take into account that the circuit court should have looked to the spirit of the opinion as some of our past decisions suggest, that would not change the result. See Casey v. Planned Parenthood,
Appellant Ward acknowledges that in 2010, when he pleaded guilty to second degree sexual assault, this offense was a Class B felony. (Add. 6 , 8; R. 26, 29) Ark. Code Ann. § 5—14—125(b)(i) (Repl. 2006). Appellant Ward committed second degree sexual assault in 2009. (Add. 2 ; R.3) In 2009, the maximum sentencé of imprisonment for a- Class B felon, enhanced as a habitual offender with more than one, but fewer than four, prior felony convictions, was thirty years. Ark. Code Ann. § 5-4-501(a)(C)(2) (Repl. 2006).
In the past, when a circuit court upon remand found that the “spirit” of the majority opinion had a faulty premise—that ■hairs had not been adequately retested— the circuit court explained that the testing had occurred and did not order subsequent retesting. See Johnson v. State,
Kemp, C.J., and Womack, J., join in this dissent.