Misty Kay Milliken v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

May 13, 2004

MISTY KAY MILLIKEN

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-962

PRO SE MOTION TO FILE A BELATED PETITION FOR REHEARING, OR IN THE ALTERNATIVE FOR WRIT OF HABEAS CORPUS [CIRCUIT COURT OF ARKANSAS COUNTY, SOUTHERN DISTRICT, NO. CR 2001-50, CR 2002-50]

MOTION DISMISSED

Per Curiam

On September 19, 2002, judgment was entered reflecting that Misty Kay Milliken had entered a plea of guilty to commercial burglary and two counts of forgery in the second degree. An aggregate sentence of 108 months' imprisonment was imposed.

On March 12, 2003, nearly six months after the judgment was entered, Milliken filed in the trial court a pro se petition pursuant to Ark. Code Ann.§ 16-90-111 (Supp. 1995), contending that the sentences imposed were illegal. The court denied the petition, and Milliken appealed to this court. We dismissed the appeal on the ground that the petition filed in the trial court was untimely. Milliken v. State, CR 03-962 (Ark. November 20, 2003). (Per curiam).

On April 13, 2004, more than five months after the appeal was dismissed, appellant filed the instant motion seeking leave to proceed with a belated petition for rehearing, or in the alternative, for issuance of a writ of habeas corpus.

Rule 2-3 (g) of the Rules of the Arkansas Supreme Court provides that rehearing lies only for the purpose of calling attention to specific errors of law or fact which the opinion is thought to contain. We need not reiterate the holding set out in the original opinion. It will suffice to say that appellant's motion does not demonstrate that there was any error of law or fact in the opinion. Moreover, appellant has offered no showing of good cause for her delay of five months' time in seeking reconsideration in this matter.

As to appellant's request that a writ of habeas corpus be issued, the allegations should first be addressed to the circuit court in the county in which appellant is incarcerated. That court will be in a position to hold an evidentiary hearing, if it deems necessary, to assess the claims made by appellant.

Motion dismissed.