Leonard Magby v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 6, 2003

LEONARD MAGBY

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-24

APPEAL FROM THE CIRCUIT COURT OF GARLAND COUNTY, CR 96-13,000, HONORABLE JOHN HOMER WRIGHT, JUDGE

AFFIRMED

In 1969, Leonard Magby entered pleas of guilty to burglary and grand larceny. He was sentenced to three years' imprisonment. More than thirty-two years later, he filed a pro se petition for writ of error coram nobis. In his petition, appellant sought to have his 1969 conviction vacated. Appellant admitted that he had fully served the sentence he was seeking to have vacated, but that he was entitled to attack his conviction because it had been used to enhance a sentence imposed against him in federal court. The circuit court denied appellant's petition, concluding that he had failed to act diligently in filing it. We affirm.

When appellant filed his petition in 2001 challenging the 1969 conviction, he admittedly was not in custody as a result of that judgment of conviction even though that judgment was used to enhance the later sentence. When a court finds cause to grant a writ of error coram nobis, the remedy is a new trial. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Inasmuch as appellant had already served the sentence imposed, his petition is moot and a new trial would not have beenan appropriate remedy even if there were cause to grant the writ with respect to his 1969 conviction.

Affirmed.

Corbin, J., not participating.