Sanders M. Carter v. Larry Norris, Director, Arkansas Department of Correction
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ARKANSAS SUPREME COURT
No.
06-296
Opinion Delivered
SANDERS M. CARTER
Appellant
v.
LARRY NORRIS, DIRECTOR,
ARKANSAS DEPARTMENT OF
CORRECTION
Appellee
September 28, 2006
PRO SE APPEAL FROM THE
CIRCUIT COURT OF LEE COUNTY,
CV-2005-153, HON. L. T. SIMES, II,
JUDGE
AFFIRMED
PER CURIAM
In 1987, Sanders M. Carter was convicted by a jury of rape, aggravated robbery with a deadly
weapon and burglary, and was sentenced to life plus forty years’ imprisonment. We affirmed.
Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988). Appellant committed these crimes on
November 18, 1986. However, the judgment and commitment order listed the date of the offenses
as November 18, 1987.
Subsequently, appellant filed a petition for postconviction relief pursuant to Ark. R. Crim.
P. 37.1. The trial court denied the petition and this court affirmed. Carter v. State, CR 87-209 (Ark.
October 16, 1989) (per curiam). In 1990, appellant filed a petition for writ of habeas corpus. The
trial court denied the petition. We dismissed the appeal as having no merit. Carter v. State, CR 90187 (Ark. November 5, 1990) (per curiam). Next, in 2004, appellant filed a petition for scientific
testing pursuant to Act 1780 of 2001. The trial court denied the petition as appellant failed to prove
an unbroken chain of custody. This court affirmed. Carter v. State, CR 03-148 (Ark. February 19,
2004) (per curiam).
In 2005, appellant filed another petition for writ of habeas corpus, seeking to set aside his
judgment and commitment order. Therein, appellant claimed that he had no formal notice “by the
presentment of a felony information or an indictment by grand jury that he was on trial for offenses
occuring [sic] on the date November 18, 1987.” Appellant argued that he was being wrongfully
imprisoned pursuant to a judgment and commitment order, filed on June 5, 1987, for “criminal
offenses that had not yet been consummated by the petitioner[.]” The trial court denied the petition,
and appellant, proceeding pro se, has lodged this appeal of that order.
We do not reverse a denial of postconviction relief unless the trial court’s findings are clearly
erroneous or clearly against the preponderance of the evidence. Greene v. State, 356 Ark. 59, 146
S.W.3d 871 (2004). A finding is clearly erroneous when, although there is evidence to support it,
the appellate court after reviewing the entire evidence is left with the definite and firm conviction
that a mistake has been committed. Flores v. State, 350 Ark. 198, 85 S.W.3d 896 (2002).
We first note that in the State’s brief to this court, the State cites two unpublished decisions
by this court in support of particular propositions. We have long held that “[a]n opinion which
qualifies as one not designated for publication is written primarily for the parties and their attorneys.
. . . Once again, we state that nonpublished opinions will not be considered as authority and should
not be cited to this court.” Weatherford v. State, 352 Ark. 324, 330-31, 101 S.W.3d 227, 232 (2003),
quoting Aaron v. Everett, 6 Ark. App. 424, 644 S.W.2d 301 (1982). (Emphasis ours.)
We continue to adhere to this concept as stated in Weatherford and Ark. Sup. Ct. R. 5-2.
Further, litigants without access to our unpublished opinions, via electronic methods or in-person
visits to this court’s library, are placed at a disadvantage when citing authority to this court due to
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the lack of widespread and complete access to unpublished opinions. However, this court will
continue to consider publication of unpublished opinions when requested to do so by motion setting
forth good cause why an unpublished opinion should be published.
The principal issue in a habeas corpus proceeding is whether the petitioner is detained
without lawful authority. Ark. Code Ann. § 16-112-103 (1987); Fullerton v. McCord, 339 Ark. 45,
2 S.W.3d 775 (1999). A writ of habeas corpus is proper when a judgment of conviction is invalid
on its face or when a circuit court lacked jurisdiction over the cause. Davis v. Reed, 316 Ark. 575,
577, 873 S.W.2d 524, 525 (1994). Unless a petitioner can show that the trial court lacked
jurisdiction or that the commitment was invalid on its face, there is no basis for a finding that a writ
of habeas corpus should issue. Friend v. Norris, ___ Ark. ___, ___ S.W.3d ___ (December 1, 2005)
(per curiam). The petitioner must plead either the facial invalidity or the lack of jurisdiction and
make a “showing, by affidavit or other evidence, [of] probable cause to believe” he is illegally
detained. Section 16-112-103(a). See also Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702
(1991).
In the instant matter, there is no question but that appellant committed the crimes against the
victim in 1986 rather than 1987. The felony information filed by the prosecutor contained the correct
date of the crimes. Appellant’s direct appeal and numerous petitions for postconviction relief
indicated the correct date. Thus, it is apparent that the judgment and commitment order contained
a mere clerical error.
Our case law is replete with examples of a clerical error in a judgment and commitment
order. Such clerical errors have not prevented enforcement of the judgment and commitment order.
See e.g. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999) (appellant owed $30,000 fine
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omitted from the judgment and commitment order but pronounced in open court). See also Willis
v. State, 90 Ark. App. 281, ___ S.W.3d ___ (2005) (sentence proper although judgment and
commitment order failed to state all offenses included in revocation of probation as defendant was
aware of the State’s intention to include all offenses). Clerical errors also have not prevented other
legal documents from effectuating the intended result. 1
As clerical errors do not speak the truth, courts have the power to enter an amended judgment
and commitment order nunc pro tunc to correct an erroneous judgment. See Ark. R. Civ. P. 60(b);
McCuen, supra; Willis, supra. Here, appellant was aware at all times that he was being tried for
crimes he committed in 1986. He had been put on notice by the State of the correct dates for the
crimes and was not prejudiced by his trial for the 1986 crimes. This case presents the exact situation
where a clerical error may have been corrected by a nunc pro tunc order. Clerical errors of this type
do not entitle appellant to a writ of habeas corpus. See Fullerton, supra.
Appellant’s petition has failed to show that he was being detained without lawful authority.
Appellant was not tried for crimes that he had not yet “consummated.” A mere clerical error in the
offense dates stated in the judgment and commitment order does not negate the jurisdiction of the
trial court as the clerical error does not speak the truth. Appellant failed to prove that the judgment
and commitment order was invalid on its face or that the trial court lacked jurisdiction over the
cause. Thus, appellant did not establish any cause to conclude that a petition for writ of habeas
corpus should issue. We find no error and affirm the decision of the trial court.
1
See e.g. Fullerton, supra, (petition for writ of habeas corpus denied where defendant’s
incorrect initial in extradition documents did not prevent positive identification of defendant) and
Douglass v. Stahl, 71 Ark. 236, 72 S.W. 568 (1903) (an incorrect title of an official issuing an
arrest warrant did not void the warrant).
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Affirmed.
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