APPEAL
FROM THE FAULKNER COUNTY CIRCUIT COURT [NOS. 23CR-12-765,
23CR-13-685, 23CR-16-701 & 23CR-17-502] HONORABLE H.G.
FOSTER, JUDGE
Kezhaya Law PLC, by: Matthew A. Kezhaya, for appellant.
Leslie
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
MEREDITH B. SWITZER, JUDGE
On
November 13, 2018, the Faulkner County Circuit Court held a
hearing on the State's petitions to revoke Dillon
Weatherford's probation in four underlying cases. The
court granted the petitions and sentenced Dillon to the
following terms in the Arkansas Department of Correction: (1)
240 months in case No. 23CR-12-765 (first-degree domestic
battery); (2) 120 months in case No. 23CR-13-865 (failure to
appear); (3) 72 months in case No. 23CR-16-701 (third-degree
domestic battery); and (4) 60 months in case No. 23CR-17-502
(third-degree domestic battery). He was given no credit for
the time he spent in jail awaiting sentencing. For his sole
point on appeal, Dillon contends that the circuit court
lacked subject-matter jurisdiction to sentence him to terms
greater than those provided by statute, which resulted from
the court's failure to give him credit for time served.
Dillon's arguments were not properly preserved for
appellate review, and we therefore dismiss the appeal.
Dillon
characterizes his point on appeal as one involving an illegal
sentence, which is a question of subject-matter jurisdiction
and can be raised for the first time on appeal. There is a
difference, however, between an illegal sentence and a
sentence imposed in an illegal manner. As our supreme court
explained in Cooley v. State, 322 Ark. 348, 350-51,
909 S.W.2d 312, 313 (1995):
First, an illegal sentence is one that is illegal on its
face. When the sentence given is within the maximum
prescribed by law, as was appellant's sentence, it is not
illegal on its face. Second, regardless of whether appellant
had an opportunity to review the judgment before it was
filed, he certainly had an opportunity to review it after it
was filed and seek correction of the judgment below pursuant
to A.R.Cr.P. Rule 37 since no appeal was pending.
. . . .
This court has previously decided that a request for jail
time credit is a request for modification of a sentence
imposed in an illegal manner. 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. No such petition
was filed in this case.
Because modification of the sentence is the only issue raised
on appeal, and because both parties agree as to the
correction of the sentence, we are somewhat inclined to
modify the judgment and affirm as modified. However, neither
Abbott nor Walters considered Rule 37 and
its application or effect. Rule 37 requires that the
merits of the modification of the sentence be determined by
the circuit court. Therefore, we feel constrained to dismiss
the appeal rather than modify the judgment.
(Emphasis added & citations omitted.)
Here,
Dillon characterizes his sentence as illegal because the
circuit court's failure to award jail-time credit will
require him to serve more than the maximum amount of time
designated in the statutes for his offenses. However,
Dillon's sentence is not illegal on its face because the
sentence is within the maximum prescribed by
law.[1]
It is, therefore, not an illegal sentence. Rather, as
explained in Cooley, supra, Dillon's
complaint is that his sentence was imposed in an illegal
manner. He is actually seeking to modify his sentence to
account for jail-time credit. [2]
If a
request for jail-time credit is raised in circuit court as
part of the original proceedings or in a post-judgment
motion, direct-appeal review is permitted. See Burgess v.
State, 2016 Ark. 175, 490 S.W.3d 645. If a request for
jail-time credit was not raised in the original proceeding,
then a claim that the sentence was imposed in an illegal
manner must be raised in a Rule 37 petition and filed with
the circuit court. Cooley, supra.
Here,
Dillon did not request jail-time credit below-either directly
or in a Rule 37 petition. His claim is therefore not properly
preserved and ...