APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT; PRO SE
MOTION FOR LEAVE TO SUBMIT BELATED REPLY BRIEF WITH
SUPPLEMENTAL ADDENDUM [NO. 72CR-13-912] HONORABLE MARK
Edward Whitney, pro se appellant.
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE.
James Edward Whitney lodged an appeal in this court from an
order denying his petition for writ of coram nobis filed in
the trial court. He filed a motion in which he requests
permission to file a belated reply brief with a supplemental
addendum. Because it is clear from the record on appeal that
the trial court correctly determined that it had no authority
to consider the petition that Whitney filed, we affirm the
denial of relief, and Whitney's motion is moot.
Arkansas Court of Appeals affirmed the judgment reflecting
Whitney's conviction on eighteen counts of possession of
child pornography on May 24, 2017. Whitney v. State,
2017 Ark.App. 341, 520 S.W.3d 326. Whitney filed his petition
for the writ in the trial court on June 16, 2017. The trial
court treated the petition as one for writ of error coram
nobis, and it found that it did not have authority to
consider the petition.
appeal from an order that denied a petition for a
postconviction remedy will not be permitted to go forward
when it is clear that the petitioner could not prevail.
Whitney v. State, 2018 Ark. 21, 535 S.W.3d 627. In
postconviction proceedings such as this, this court need not
address motions such as the one Whitney filed, and those
motions are moot when it is clear from the record that the
denial of relief was correct because the trial court lacked
authority to consider the petition that was before it.
Justus v. State, 2012 Ark. 91.
standard of review of an order entered by the trial court on
a petition for writ of error coram nobis is whether the trial
court abused its discretion in granting or denying the writ.
Griffin v. State, 2018 Ark. 10, 535 S.W.3d 261. An
abuse of discretion occurs when the court acts arbitrarily or
groundlessly. Id. The trial court cannot entertain a
petition for writ of error coram nobis after a judgment has
been affirmed on appeal unless this court grants permission.
Carner v. State, 2018 Ark. 20, 535 S.W.3d 634.
trial court correctly treated the petition Whitney filed as
one for error coram nobis relief. Arkansas Rule of Civil
Procedure 60(k) specifically abolished coram vobis and audita
querela actions as a procedure for obtaining relief from a
judgment. Petitions for the abolished writs of error like
coram vobis and audita querela are accordingly to be treated
as petitions for coram nobis relief, with the same grounds
for relief and procedural rules applicable. Chestang v.
State, 2015 Ark. 372 (per curiam). Any petition for a
writ of error challenging a criminal judgment of conviction
in this state is clearly a petition for a writ of coram nobis
as it applies in modern law. Id. Such a writ for
error is indistinguishable from a writ of error coram nobis.
court noted in Leggett v. State, 231 Ark. 13, 328
S.W.2d 252 (1959), the term "coram nobis" means,
literally, "before us ourselves" and "coram
vobis" means "before you." 231 Ark. 13, 17
n.5, 328 S.W.2d 252, 255 n.5. The term "writ of error
coram nobis" has been recognized in our common law for
all motions for new trial in a criminal case filed after the
term of court has expired. Id. In Leggett,
this court also recognized that the trial court was not the
correct tribunal to entertain jurisdiction of the case when
the judgment had been affirmed by this court and that the
petitioner must obtain the permission of the Arkansas Supreme
Court before applying to the trial court for a writ of error
coram nobis. 231 Ark. at 17, 328 S.W.2d at 255.
time he filed his petition, Whitney had not sought, much less
obtained, this court's permission to reinvest
jurisdiction in the trial court to file a petition for a writ
of error coram nobis or any other similar relief. The record
clearly demonstrates that the trial court did not abuse its
discretion in declining to consider the petition Whitney had
Josephine Linker Hart, Justice, dissenting.
dissent for the reasons outlined in Gray v. State,
2018 Ark. 79, ___ S.W.3d ___ (Hart, J., dissenting). The only
matter properly before us at this juncture is Mr.
Whitney's Motion for Extension of Time to File Belated
Reply Brief. This court does ...