Saul Lopez Chavez v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

APRIL 10, 2003

SAUL LOPEZ CHAVEZ

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-461

APPEAL FROM THE CIRCUIT COURT OF WASHINGTON COUNTY, NO. CR 95-1742, HONORABLE WILLIAM A. STOREY, JUDGE

APPEAL DISMISSED

In 1996, appellant pleaded guilty to delivery of a controlled substance. He was placed on probation for five years and further proceedings against him were deferred pursuant to Act 346 of 1975, codified at Ark. Code Ann. § 16-93-303 et seq. (1987 & Supp. 1995). The conditions of appellant's probation included his serving seventy-five days in the regional punishment facility, reporting to a probation officer, and making various payments.

On August 16, 2000, the circuit clerk filed a document entitled "Satisfaction of Criminal Judgment," indicating that appellant had complied with the conditions of his probation. On December 8, 2000, appellant filed a petition to seal the record in his case pursuant to Act 346, claiming that he had "satisfactorily complied with the conditions and orders of this Court." He subsequently filed a petition requesting to be discharged from his probation, which was granted. On April 12, 2001, appellant filed a petition for writ of error coram nobis, claiming that in November 2000, he faced deportation proceedings as a result of his guilty plea and that he wasunaware at the time that his plea might have immigration consequences. According to appellant, his plea should be set aside because neither counsel nor the circuit court informed him that, as a non-citizen, he could be deported or suffer other adverse consequences. The circuit court denied the petition, and appellant filed a notice of appeal on February 13, 2002.

We were faced with a similar situation in the case of Magby v. State, 348 Ark. 415, 72 S.W.3d 508 (2002) (per curiam). After his petition for writ of error coram nobis was denied, Magby filed a notice of appeal rather than a petition for writ of certiorari in this court. He took no further action until he was notified that the circuit clerk had forwarded the record to this court in response to the notice of appeal. Unlike the instant case, Magby then sought to file a belated petition for writ of certiorari to proceed with a review of the court's denial of coram nobis relief. We found that "there is no sound reason to continue to require a petition for writ of certiorari to be filed in this court rather than a notice of appeal to be filed in the trial court from the denial of a petition for writ of error coram nobis." We further overruled our holding in Skinner v. State, 344 Ark. 184, 40 S.W.3d 268 (2001), which provided that following a denial of coram nobis relief, a petitioner must proceed in this court with a timely petition for writ of certiorari rather than a notice of appeal filed in the trial court. Accordingly, even though Magby states that the change to permitting coram nobis matters to be reviewed by appeal will not be applied retroactively, we find no good cause to distinguish the instant case from Magby, and thus will consider appellant's case as if he had complied with proper procedure.

The circuit court accepted appellant's guilty plea, put him on probation, then on February 1, 2001, discharged him from probation prior to the termination of the probationary period. Thus, when appellant filed his petition on April 12, 2001, he was no longer serving the probationary periodthat was imposed. "When a court finds cause to grant a writ of error coram nobis, the remedy is a new trial." Anderson v. State, CR 02-1175 (Ark. Feb. 13, 2003) (citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984)). Because appellant has completed his period of probation, his petition is moot, and a new trial would not have been an appropriate remedy. Appellant's appeal is therefore dismissed.

Appeal dismissed.