JAMES C. CASON APPELLANT
STATE OF ARKANSAS APPELLEE
APPEAL FROM THE MILLER COUNTY CIRCUIT COURT; MOTION TO
EXPEDITE [NO. 46CR-91-59], HONORABLE KIRK JOHNSON, JUDGE.
AND REMANDED; MOTION TO EXPEDITE DENIED.
C. Cason, pro se appellant.
Rutledge, Att'y Gen., by: Jake H. Jones, Ass't
Att'y Gen., for appellee
April 4, 1991, appellant James C. Cason pleaded guilty to
aggravated robbery; burglary; felon in possession of firearm;
theft of property; manufacture, delivery, or possession of a
controlled substance; and fraud/drug paraphernalia for which
he was sentenced to an aggregate term of fifty years'
imprisonment. On November 10, 2015, Cason filed a motion to
correct time spent in custody pursuant to Arkansas Code
Annotated section 5-4-404 (Repl. 2013), claiming entitlement
to credit for ninety days of pretrial detention. On December
1, 2015, the trial court denied the motion, finding that his
request for jail-time credit against his sentence was a
request for modification of a sentence imposed in an illegal
manner; as such, Cason had failed to timely seek
postconviction relief under Arkansas Rule of Criminal
Procedure 37.1 (1995). Cason now appeals the denial of
relief. Cason has also filed a motion to expedite the appeal.
We reverse and remand and deny the motion to expedite.
motion to expedite, Cason only claims that every day spent
incarcerated exceeds the amount of time he should be required
to serve. He has failed to state claims in his motion to
expedite, which was filed after the case had been fully
briefed, that would sufficiently demonstrate an unreasonable
delay in the progress of his appeal or establish good cause
for the motion to be heard by this court before other
postconviction matters that are pending. See Hill v.
State, 2014 Ark. 57 (per curiam). Cason's motion to
expedite is denied.
appeal, as he did below, Cason contends that he is entitled
to credit for time in custody that resulted in a sentence of
imprisonment, citing Arkansas Code Annotated section 5-4-404.
He notes that the circuit court found that his petition
sought a modification of a sentence imposed in an illegal
manner and denied him relief pursuant to Rule 37.
Additionally, the circuit court discussed a "true
clerical error, " which could be corrected nunc pro tunc
to make "the record speak the truth, but not to make it
speak what it did not speak but ought to have spoken."
Cason argues that, although the circuit court stated that the
circuit court's docket did not reflect that jail-time
credit was to be granted, the docket sheet did reflect a
credit of ninety days at the time of the plea. Cason contends
the record clearly speaks that he was to be given credit for
ninety days in the county jail.
State counters that Cason's assertion of ninety days'
credit is incorrect and that the period from January 11,
1991, to April 4, 1991, is only eighty-four days.
Nevertheless, Cason's request for jail-time credit is
nothing more than a request for modification of a sentence
imposed in an illegal manner-a claim that should have been
raised pursuant to Rule 37.1, and Cason's attempt to
raise the claim after twenty-four years was untimely.
Although the State admits the docket reflects the ninety
days' credit, it contends there is no need to address the
issue of correcting the order nunc pro tunc because the
"fact is irrelevant in light of the trial court's
lack of jurisdiction."
agree with the circuit court that it could not modify the
sentence pursuant to Arkansas Code Annotated section 5-4-404
because Cason's request was untimely. Arkansas Code
Annotated section 5-4-404 states that if a defendant is
"held in custody for conduct that results in a sentence
to imprisonment or confinement the court shall credit the
time spent in custody against the sentence." Cason's
request for jail-time credit-credit that he contends is
missing from the face of the judgment-and-commitment order-is
a challenge that his sentence is illegal or imposed in an
illegal manner. A void or illegal sentence is one that is
illegal on its face. Barber v. State, 2016 Ark. 54,
at 10, 482 S.W.3d 314, 322 (per curiam). A sentence is
illegal on its face when it exceeds the statutory maximum for
the offense for which the defendant was convicted.
Id. If a sentence is within the limits set by
statute, it is legal. Id. Cason does not dispute
that his sentence does not exceed the statutory maximum.
See Delph v. State, 300 Ark. 492, 780 S.W.2d 527
Cason's claims regarding his entitlement to ninety days
of jail-time credit, this court has previously held that a
request for jail-time credit is a request for modification of
a sentence imposed in an illegal manner. Cooley v.
State, 322 Ark. 348, 350, 909 S.W.2d 312, 313 (1995). A
claim that a sentence was imposed in an illegal manner must
be raised in a petition filed with the circuit court under
Rule 37.l. Id.; see also Perez v. State,
2015 Ark. 120 (per curiam). Likewise, this court has made
clear that, regardless of its label, a pleading that mounts a
collateral attack on a judgment is governed by the provisions
of our postconviction rule. Green v. State, 2016
Ark. 216, 492 S.W.3d 75 (per curiam).
pleaded guilty on April 4, 1991, and filed his motion to
correct time spent in custody on November 10, 2015. Under
Arkansas Code Annotated section 5-4-404, a petition claiming
relief under this rule must be filed in the appropriate court
within ninety days of the date of entry of judgment on a plea
of guilty, or, if the judgment was not entered of record
within ten days of the date sentence was pronounced, a
petition must be filed within ninety days of the date
sentence was pronounced. See Ark. R. Crim. P. 37.2(c)
(1991). Clearly, seeking Rule 37.1 relief more than
twenty-four years after sentence was pronounced is untimely.
Cf. Cooley, 322 Ark. 348, 909 S.W.2d 312 (Cooley
raised a section 5-4-404 claim on direct appeal, meaning he
was not without a remedy because he could seek postconviction
relief after his appeal.). Therefore, Cason is not entitled
to relief under section 5-4-404.
we reverse and remand the case for the trial court to
determine whether Cason is entitled to relief pursuant to
Arkansas Rule of Civil Procedure 60(b), which permits
correction of an error by nunc pro tunc order. Pursuant to
Rule 60(b), a trial court may at any time correct clerical
mistakes in judgments, decrees, orders, or other parts of the
record and errors therein arising from oversight or omission.
A true clerical error is "essentially one that arises
not from an exercise of the court's judicial discretion
but from a mistake on the part of its officers (or perhaps
someone else)." Francis v. Protective Life Ins.
Co., 371 Ark. 285, 293, 265 S.W.3d 117, 123 (2007)
(citing Luckes v. Luckes, 262 Ark. 770, 772, 561
S.W.2d 300, 302 (1978)). Rule 60(b) has been applied in
criminal cases "where we recognized a court's power
to correct a judgment nunc pro tunc to make it speak
to the truth." Bates v. State, 2009 Ark. 226
circuit court's power to correct mistakes or errors is to
make "the record speak the truth, but not to make it
speak what it did not speak but ought to have spoken."
Lord v. Mazzanti, 339 Ark. 25, 29, 2 S.W.3d 76, 79
(1999). A nunc pro tunc order may be entered to correct a
misprision of the clerk, but the circuit court cannot change
an earlier record to correct something that should have been
done but was not. Griggs v. Cook, 315 Ark. 74, 78,
864 S.W.2d 832, 834 (1993) (citing Bradley v.
French, 300 Ark. 64, 776 S.W.2d 355 (1989)). A circuit
court may correct a mere clerical error in a judgment at any
time; however, a motion to correct a judgment that is based
on a substantive claim falls within the purview of Rule 37.1,
not Rule 60. See Samples v. State, 2012 Ark. 146, at
2 (per curiam) (Appellant's motion did not assert a mere
clerical error, but instead asserted that the date reflected
in the judgment did not conform with the plea agreement which
was a substantive claim.); Grissom v. State, 2009
Ark. 557, at 2-3 (per curiam) (An amended judgment entered
nunc pro tunc to correct a clerical oversight because the
judgment did not reflect that the appellant was sentenced as
a habitual offender was a proper use of nunc pro tunc
order.); McCuen v. State, 338 Ark. 631, 634-35, 999
S.W.2d 682, 684 (1999) (When the trial judge in open court
sentenced McCuen to seventeen years in prison and a $30, 000
fine but the fine was left off the judgment and later added
by nunc pro tunc ...