JAMES EDWARD GREEN, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE DREW COUNTY CIRCUIT COURT [NO. 22CR-10-106]
HONORABLE RANDY WRIGHT, JUDGE.
Edward Green, Jr., pro se.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, JUDGE.
James Edward Green, Jr., appeals after the Drew County
Circuit Court entered an order denying his "Motion for
Credit for Time Spent in Custody - Pursuant to an
'Amended' Sentencing Order, " which the circuit
court treated as a petition for postconviction relief filed
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2017),
as untimely. For reversal, he contends that the circuit court
erred in finding his petition untimely. Because we agree with
the circuit court, we must dismiss this appeal.
was convicted of failure to comply with registration and
reporting requirements applicable to sex offenders and with
residing within 2000 feet of a day-care facility as a level-4
sex offender. He was sentenced as a habitual offender to
serve a total sentence of 540 months' imprisonment in the
Arkansas Department of Correction. Appellant's
judgment-and-commitment order reflects that he was awarded
348 days of jail-time credit. We affirmed his direct appeal,
holding that there was sufficient evidence to support a
finding that appellant lived in a particular trailer at an
address within 2000 feet of a day-care facility without
reporting a change in address. Green v. State, 2013
Ark.App. 63. Appellant subsequently filed a pro se petition
for postconviction relief pursuant to Arkansas Rule of
Criminal Procedure 37.1 (2011) on March 1, 2013, asserting a
number of claims stemming from the State's introduction
of the "Risk Assessment and Offender Profile
Report" into evidence during the sentencing phase at
trial and for ineffective assistance of counsel. His petition
was ultimately denied by the circuit court without a hearing,
and our supreme court affirmed. Green v. State, 2013
Ark. 455 (per curiam).
September 18, 2017, appellant filed a pro se "Motion for
Credit for Time Spent in Custody - Pursuant to an
'Amended' Sentencing Order." In his petition,
appellant argued that the circuit court failed to properly
award him 348 days in jail-time credit on both of his
sentences, essentially arguing that the circuit court should
have awarded him a total of 696 days jail-time credit because
his sentences were to be served consecutively. Appellant
further argued that his remedy was a nunc pro tunc order,
which "is not a modification of sentence outside [the
circuit court's] jurisdiction, but a valid act doing what
should have been done." The circuit court treated
appellant's motion as a petition for postconviction
relief and denied the petition as untimely. This appeal
now argues on appeal that the circuit court incorrectly
treated his petition as filed pursuant to Rule 37.1 and
instead argues that he was entitled to relief pursuant to
Arkansas Rule of Civil Procedure 60(b), which permits
correction of an error by nunc pro tunc order. We disagree.
supreme court has specifically held that a request for credit
against a sentence for time spent in custody is a request for
modification of a sentence imposed in an illegal manner.
Perez v. State, 2015 Ark. 120 (per curiam). A claim
that a sentence was illegally imposed must be raised in a
petition under Arkansas Rule of Criminal Procedure 37.1.
Id. Regardless of the label placed on a pleading by
the petitioner, a pleading that mounts a collateral attack on
a judgment seeking to correct a sentence imposed in an
illegal manner is governed by the time provisions of Rule
37.2. Id. Rule 60(b), on the other hand, permits a
circuit court to correct at any time clerical mistakes in
judgments, decrees, orders, or other parts of the record and
errors therein arising from oversight or omission. Cason
v. State, 2016 Ark. 387, 502 S.W.3d 510 (per curiam).
Although a nunc pro tunc order may be entered to correct a
misprision of the clerk, the circuit court cannot change an
earlier record with a nunc pro tunc order to correct
something that should have been done but was not.
Id. Furthermore, a motion to correct a judgment that
is based on a substantive claim falls within the purview of
Rule 37.1, not Rule 60. Id.
appellant did not cite Rule 60(b) in his petition.
Furthermore, contrary to his assertions now on appeal,
appellant requested that he be granted additional jail-time
credit in the amount of 696 days. He further argued in his
petition that he was entitled to the additional credit
because that was "what should have been done." He
does not argue that the circuit court's decision to limit
his jail-time credit to 348 days was the result of a clerical
mistake. With regard to the circuit court's ruling on
appellant's Rule 37.1 petition, appellant is limited to
the scope and nature of the arguments that he made below that
were considered by the circuit court in rendering its ruling.
Pedraza v. State, 2016 Ark. 85, 485 S.W.3d 686 (per
curiam). Therefore, we hold that appellant's request for
jail-time credit was a request for modification of a sentence
imposed in an illegal manner, and the circuit court correctly
treated appellant's petition as filed pursuant to Rule
37.1. See Cason, supra; Perez,
that we have determined that appellant's pro se petition
is a Rule 37.1 petition, we must turn to whether
appellant's Rule 37.1 petition was timely. We hold that
it was not. Arkansas Rule of Criminal Procedure 37.2(c)
requires that, if an appeal was taken of the judgment of
conviction, a petition claiming relief under this rule must
be filed in the circuit court within sixty days of the date
the mandate is issued by the appellate court. Ark. R. Crim.
P. 37.2(c)(ii). The time limitations imposed in Rule 37.2(c)
are jurisdictional in nature, and if they are not met, the
circuit court lacks jurisdiction to grant postconviction
relief. Perez, supra. Because
appellant's motion was untimely filed, the circuit court
had no jurisdiction to grant the relief sought. Id. When
the lower court lacks jurisdiction, the appellate court also
lacks jurisdiction. Id. Accordingly, this appeal
must be dismissed.
Gruber, C.J., and ...