Petree v. State

Christopher PETREE v. STATE of Arkansas

CR 94-987                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
           Unpublished opinion delivered July 10, 1995
      [Appellee's motion requesting publication of opinion
                 granted September 11, 1995.*]


1.   Criminal law -- disposition of offenders -- illegal sentence -
     - two-year imprisonment followed by five-year probation
     exceeded maximum statutory penalty. -- Where appellant pleaded
     guilty to driving while intoxicated, fourth offense, and was
     sentenced to two years' imprisonment to be followed by five
     years of probation, the supreme court held that the original
     judgment and commitment order was illegal because the two-year
     imprisonment followed by a five-year term of probation
     exceeded the maximum penalty for the offense committed as
     defined under Ark. Code Ann.  5-65-111(b)(3) (Repl. 1993) and
     because the imposition of probation following a term of
     imprisonment was prohibited by Ark. Code Ann.  5-4-104 (Repl.
     1993).

2.   Criminal procedure -- postconviction relief -- A.R.Cr.P. Rule
     37 filing deadlines also govern statutory petitions --
     jurisdictional in nature. --  Arkansas Rule of Criminal
     Procedure 37 has filing deadlines that govern not only Rule 37
     petitions but also petitions to correct illegal sentences
     filed pursuant to Ark. Code Ann.  16-90-111(a) (Supp. 1993);
     A.R.Cr.P. Rule 37.2(a) states that a petition claiming relief
     must be filed within ninety days of the entry of judgment, and
     A.R.Cr.P. 37.2(b) requires that any claim that a sentence has
     been illegally imposed must be raised under the rule; these
     filing deadlines are jurisdictional in nature; if they are not
     met, a circuit court lacks jurisdiction to consider the Rule
     37 petition at issue or the petition to correct illegal
     sentence at issue on its merits.

3.   Criminal procedure -- postconviction relief -- petition not
     filed in timely manner -- circuit court had no jurisdiction to
     correct sentence -- case remanded for reinstatement of
     original judgment and commitment order. -- Where appellant's
     petition was not filed in a timely manner, i.e., within ninety
     days of the date of the entry of the original judgment and
     commitment order, the circuit court, having no jurisdiction to
     correct the sentence, was required to dismiss the petition;
     although the provisions of Ark. Code Ann.  16-90-111(a)
     permit a circuit court to correct an illegal sentence at any
     time, the supreme court has held that this provision is
     invalid to the extent that it conflicts with A.R.Cr.P. Rule
     37.2(b); the case was remanded for reinstatement of the
     original judgment and commitment order.    


     Appeal from Independence Circuit Court; John Dan Kemp, Judge;
reversed and remanded.
     Chaney W. Taylor, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Acting Deputy
Att'y Gen. and Senior Appellate Advocate, for appellee.

     Per Curiam.
     * Jesson, C.J., not participating.  








CHRISTOPHER PETREE
     Appellant


v.


STATE OF ARKANSAS
     Appellee





CR 94-987


APPEAL FROM THE CIRCUIT COURT
OF INDEPENDENCE COUNTY, (NO. CR
93-97 & CR 93-149), HONORABLE
JOHN KEMP, JUDGE



REVERSED AND REMANDED




                    Supreme Court of Arkansas
                 Opinion delivered July 10, 1995
      [Appellee's motion requesting publication of opinion 
                  granted September 11, 1995.]




     Per Curiam.  The appellant pleaded guilty to driving while
intoxicated, fourth offense, and was sentenced to two years
imprisonment to be followed by five years of probation.  His
driver's license was revoked for three years.  The judgment and
commitment order was filed on August 27, 1993.  On May 16, 1994,
the appellant filed a petition to vacate sentence pursuant to
Arkansas Code Annotated  16-90-111 (Supp. 1993) and Rule 37 of the
Arkansas Rules of Criminal Procedure.  He argued that the term of
two years of incarceration followed by five years of probation
exceeded the statutory maximum allowed by law.  The court granted
the petition, and on June 6, 1994, the appellant appeared before
the Independence County Circuit Court for resentencing.  The new
sentence was a term of sixty months to be served at the Arkansas
Department of Correction.  The appellant brings this appeal.  
     The appellant argues that the trial court erred in the
following ways: (1) the trial court failed to set forth particular
reasons for increasing the term of imprisonment; (2) it failed to
allow him the opportunity to withdraw a previous plea of guilty;
(3) it solicited and obtained information regarding pending charges
against him, yet failed to consider favorable factors to him; and
(4) the two-year imprisonment portion of the original sentence was
valid, had already been put into execution, and therefore was not
subject to modification.  The Independence County Circuit Court's
judgment and commitment order of June 6, 1994, is reversed because
the court lacked jurisdiction to resentence the appellant.
     The original judgment and commitment order was illegal, as the
appellant originally maintained, because the two-year imprisonment
followed by a five-year term of probation exceeds the maximum
penalty for the offense committed as defined under Ark. Code Ann.
 5-65-111(b)(3) (Repl. 1993) and because the imposition of
probation following a term of imprisonment is prohibited by Ark.
Code Ann.  5-4-104 (Repl. 1993).  However, as stated before, the
trial court had no jurisdiction to correct the illegal sentence.
      The appellant failed to file his May 16, 1994, petition to
vacate sentence in a timely manner.  Rule 37 has filing deadlines
that govern not only Rule 37 petitions but also petitions to
correct illegal sentences filed pursuant to Ark. Code Ann.  16-90-
111(a).  Arkansas Rule of Criminal Procedure 37.2(c) states, in
pertinent part:
          ... If conviction was obtained on a plea of guilty, ...
          the petition claiming relief under this rule must be
          filed in the appropriate circuit court within ninety (90)
          days of the date of the entry of judgment.  

Arkansas Rule of Criminal Procedure 37.2(b) states, in pertinent
part:
          ... All grounds for post-conviction relief from a
          sentence imposed by circuit court, including claims that
          a sentence is illegally imposed, must be raised in a
          petition under this rule.
These filing deadlines are jurisdictional in nature.  If they are
not met, a circuit court lacks jurisdiction to consider the Rule 37
petition at issue or the petition to correct illegal sentence at
issue on its merits.  Harris v. State, 318 Ark. 599, 887 S.W.2d 514
(1994); Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993).  
     The appellant should have filed his petition within ninety
days of August 27, 1993, the date that the original judgment and
commitment order was entered against him.  Because the petition was
not filed in a timely manner, the circuit court was required to
dismiss the petition.  Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).  Although the provisions of Ark. Code Ann.  16-90-
111(a) permit a circuit court to correct an illegal sentence at any
time, this court has held that this provision is invalid to the
extent that it conflicts with Rule 37.2(b).  Smith v. State, 321
Ark. 195, 900 S.W.2d 939 (1995); Harris v. State, 318 Ark. 599
(1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994).  The
case is remanded to the Independence County Circuit Court to
reinstate the original judgment and commitment order.    
     Reversed and remanded.