Bufford McDonald v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-529

NOT DESIGNATED FOR PUBLICATION

BUFFORD McDONALD

Appellant

v.

STATE OF ARKANSDAS

Appellee

Opinion Delivered September 29, 2005

PRO SE PETITION FOR REHEARING [APPEAL FROM THE CIRCUIT COURT OF POPE COUNTY, CR 1998-104, HON. JOHN S. PATTERSON, JUDGE]

PETITION FOR REHEARING DENIED

PER CURIAM

Bufford McDonald filed in circuit court a motion pursuant to Ark. R. Civ. P. 60 to vacate or modify the judgment in his criminal conviction for rape. The circuit court denied the motion and we affirmed, declining to apply Ark. R. Civ. P. 60 in a criminal case. McDonald v. State, CR 04-529 (Ark. June 9, 2005). McDonald now brings this petition for rehearing of that decision.

Rule 2-3(g) of the Rules of the Arkansas Supreme Court provides that a petition for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain and not to repeat arguments already considered and rejected by this court. The petition must cite to facts the appellant contends were overlooked and provide references to the abstract or addendum as required by Ark. Sup. Ct. R. 2-3(h). Appellant McDonald fails to provide any such citations and he alleges no error of law or fact that would merit rehearing.

Appellant asserts his actual innocence as his primary basis for reconsideration. A claim of actual innocence is simply a challenge to the sufficiency of the evidence, another direct attack on the judgment below. We do not permit an appellant to rechallenge the sufficiency of the evidence at trial in a postconviction proceeding. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995).

Appellant also asserts we erred in characterizing his plea as one of guilty. The judgment and commitment order entered December 1, 1999, indicates appellant entered a negotiated plea of guilty. An amended order entered December 8, 1999, indicates a plea of nolo contendere. Whether appellant admitted his guilt, or whether he simply admitted that evidence of his guilt was so overwhelming as to cause him not to contest it, makes no difference either in the propriety of his conviction or in the procedural remedies available to him to challenge that conviction.

Appellant's remaining basis asserted for rehearing is that even if Ark. R. Civ. P. 60 does not apply in a criminal case, his motion should have been considered as a motion to correct the judgment nunc pro tunc. Where there was an obvious clerical error, a trial court has jurisdiction to correct the clerical error to make the judgment speak the truth and may enter a judgment nunc pro tunc to correct an erroneous judgment. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999). Here, appellant did not allege any clerical error in imposition of the judgment. As we indicated in our opinion, appellant must conform his pleadings to the requirements of those remedies that are currently available to him.

None of the facts or points of law referenced by appellant as overlooked are relevant to our holding. Accordingly, we deny his petition for rehearing.

Petition for rehearing denied.