APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-96-209]
HONORABLE WILLIAM M. PEARSON, JUDGE
E. Stewart, pro se appellant.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
DANKEMP, Chief Justice.
Sammy Earl Stewart filed a petition, denied by the trial
court, requesting that the court reconsider and/or modify the
sentence imposed in his criminal case. Stewart appeals the
adverse decision, and we affirm because the trial court
correctly found it did not have the authority to grant the
relief that Stewart requested.
judgment at issue was entered in 1997. Generally speaking,
absent a statute, rule, or available writ, once the circuit
court enters a judgment-and-commitment order, jurisdiction is
transferred to the executive branch of our government.
Whitney v. State, 2018 Ark. 21, 535 S.W.3d 627.
Without an exception as noted, the trial court lacks
subject-matter jurisdiction of the case. Id. We have
long held that a trial court loses jurisdiction to modify or
amend an original sentence once the sentence is put into
execution. Id. Because Stewart is incarcerated in
the Arkansas Department of Correction, there is no question
that his sentence has been placed into execution. Johnson
v. State, 2012 Ark. 212.
circuit court's decision to deny relief under Arkansas
Code Annotated section 16-90-111 (Repl. 2016) will not be
overturned unless that decision is clearly erroneous.
Green v. State, 2017 Ark. 361, 533 S.W.3d 81.
Stewart requested a hearing "to make the court aware of
new and mitigating circumstances." The trial court found
that it could not consider the request to modify
Stewart's sentence because more than sixty days had
passed since entry of the mandate affirming Stewart's
conviction and sentence. Stewart contends on appeal that the
court should have considered the petition under section
16-90-111, that there was no time limitation, and that, if
granted a hearing, he would have set out claims of
ineffective assistance of counsel during his trial
proceedings as "mitigating circumstances."
appellant may not change the grounds for his or her argument
on appeal and is instead limited to the scope and nature of
the objections presented at trial. Stover v. State,
2017 Ark. 66, 511 S.W.3d 333. We have held that even a
constitutional argument must be raised to the circuit court
and ruled upon in order to preserve the issue for appellate
review. Id. Stewart's claims in the petition did
not include any issue of ineffective assistance of counsel.
Even if Stewart's request that the trial court consider
"mitigating circumstances" in order to modify his
sentence could be construed broadly enough to encompass
claims of ineffective assistance of counsel, Stewart still
failed to bring his request in a timely petition that the
trial court could have considered.
16-90-111 allows the trial court to correct an illegal
sentence at any time because a claim that a sentence is
illegal on its face presents an issue of subject-matter
jurisdiction. Latham v. State, 2018 Ark. 44. A
sentence is illegal on its face when it exceeds the statutory
maximum for the offense for which the defendant was
convicted. Id. The time limitations on filing a
petition under section 16-90-111 on the ground that the
sentence was imposed in an illegal manner, however, are
superseded by Arkansas Rule of Criminal Procedure 37.2(c),
and if the time for relief under Rule 37.2 has expired,
section 16-90-111 provides no relief for claims that a
sentence was illegally imposed. Id.
allegations in the petition raised no issue of an illegal
sentence. He did not question the legality or validity of the
sentence in his petition. Stewart appealed his judgment, and
this court affirmed. Stewart v. State, 331 Ark. 359,
961 S.W.2d 750 (1998). Under the then- applicable rules for
postconviction relief, Stewart was required to bring a claim
that his sentence was imposed in an illegal manner in a Rule
37.1 petition filed no later than sixty days after the date
the mandate was issued by the appellate court. Ark. R. Crim.
P. 37.2(c) (1997). In this case, the mandate issued on March
3, 1998, and Stewart filed his petition to modify the
sentence in 2017-more than nineteen years after the mandate
issued and well outside the sixty-day period for the relief
he sought. Stewart's petition set out no basis for the
court to grant the relief he requested, and there was
therefore no clear error in the trial court's denial of
Josephine Linker Hart, Justice, concurring.
circuit court was correct when it determined that it had no
jurisdiction to entertain Mr. Stewart's motion to modify
his sentence. In his petition to the circuit court, Mr.
Stewart failed to allege that his sentence was
"illegal." The law in this state is clear that once
a valid sentence is placed into execution, the circuit court
loses jurisdiction to modify that sentence. Green v.
State, 2017 Ark. 361, 533 S.W.3d 81. However, if the
sentence imposed is not a valid sentence, Arkansas
Code Annotated section 16-90-111 provides the vehicle for an