concurring. The circuit court’s decision to deny petitioner Kevin Taylor’s request for a writ of habeas corpus should clearly be affirmed. On December 12, 1991, Taylor pled guilty in criminal case number 91-756 to possession of a controlled substance with intent to deliver — a Class Y felony. He was given a twenty-year suspended imposition of sentence. On the same day, Taylor pled guilty in criminal case number 91-617 to possession of a controlled substance, a Class C felony, and sentenced to ten years’ imprisonment. Taylor was discharged horn his ten-year sentence in the 91-617 case. Following Taylor’s discharge and release, Taylor was found guilty of violating his terms of probation in case number 91-756, by attempting to possess cocaine and for associating with known criminals. The trial court then revoked Taylor’s twenty-year suspended sentence given in 91-756.
Taylor appealed the trial court’s revocation decision, and his sole argument was that the State’s evidence was insufficient; the court of appeals rejected Taylor’s argument in an unpublished opinion. Taylor v. State, CACR 98-363 (Ark. Ct. App. Oct. 14, 1998). After returning to prison, Taylor filed a pro se petition and brief requesting a writ of habeas corpus, which the trial court denied. This appeal ensued.
Taylor’s major argument below, and in this appeal, is that, when he pled guilty in the 91-756 drug offense, the trial court erred because it had no authority to impose a twenty-year suspended sentence because the drug offense to which he pled guilty was a Class Y felony. At that time, December 18, 1991, the statutory law prohibited the courts from suspending imposition of sentence for a Class Y felony. Nor did the law in 1991 empower courts to place a defendant on probation for drug related offenses under the Uniform Controlled Substances Act. See Ark. Code Ann. § 5-4-301 (a)(1)(F) (Supp. 1991).1 In other words, the trial court was required to sentence Taylor to a term of imprisonment, not a suspended sentence, since sentencing may not be other than in accordance with the statute in effect at the time of the commission of the crime. See State v. Stephenson, 340 Ark. 229, 9 S.W.3d 495 (2000). Taylor submits that, because the trial court had no authority to impose the suspended sentence in 1991, the sentence is illegal, facially invalid, and a writ of habeas corpus should be issued to correct Taylor’s illegal sentence. He urges that, because his sentence is void, this court should order Taylor’s immediate release.
The majority opinion is correct in deciding that, although the suspended sentence given Taylor appeared to favor him, the suspended sentence was (and is) illegal. However, habeas corpus is not Taylor’s remedy, nor should he be released from custody, as Taylor asks. The law is well settled that a writ of habeas corpus will not be issued as a substitute for post-conviction relief. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991). Here, Taylor’s conviction and sentence were imposed in 1991, when our statutory law provided that a circuit court could correct an illegal sentence at any time. See Ark. Code Ann. § 16-90-lll(a) (1991); see also Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992) (court held § 16-90-111 (a) provided illegal sentences maybe corrected at any time). The Bangs court further stated the general rule that, if the original sentence is illegal, even though partially executed, the sentencing court may correct it pursuant to § 16-90-111 (a) (Supp. 1991). The court in Bangs also held that, where an error has nothing to do with the issue of guilt or innocence and relates only to punishment, t he appellate court may correct the error in lieu of reversing and remanding the case. Id. at 294.
In the circumstances presented this court by Taylor’s illegal sentence, the court is correct in reversing and remanding this matter to the trial court in accord with § 16-90-111 (a), so that the court can impose a sentence in accordance with Ark. Code Ann. § 5-4-401 (a)(1) and § 5-4-104(c)(1) (Repl. 1997). The majority court is wrong, however, to mention habeas corpus, which I will explain later.
In remanding this case, the trial court should be directed to give Taylor credit for the imprisonment he served, since the record appears to reflect the trial court never ruled that case numbers 91-617 and 91-756 would run consecutively, causing the sentences in the two cases to run concurrently.
Before ending this opinion, I want to offer the bench and bar a caveat. Presently, there is a clear conflict between this court’s Rule 37 and § 16-90-111 (a). This court plainly stated in Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999), that § 16-90-111 (a) has been superceded by the time limitations in Ark. R. Crim. P. Rules 37.1 and 37.2(b) and (c), which provide for postconviction relief when a defendant is in custody. Rule 37.2(b) provides that all grounds for postconviction relief from a sentence imposed by a circuit court, including claims that a sentence is illegal or was illegally imposed must be raised in a petition under Rule 37. See also Rule 37.1(a)-(d) and Rule 37.2(c). Rule 37.2(c) established a ninety-day limitation within which a petition must be filed from the date sentence was pronounced.2
The foregoing Rule 37 provisions are jurisdictional, and a circuit court cannot grant postconviction relief on an untimely petition. See Hill v. State, 340 Ark. 248, 13 S.W.3d 142 (2000); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994). In the present case, if Taylor had been required to file a petition under Rule 37, he would have been procedurally barred by the Rule’s ninety-day limitation. Only because his illegal sentence had been imposed in 1991 was he availed the defense under § 16-90-111, which was in effect then and permitted Taylor to challenge his illegal sentence at any time.
In conclusion, it should be briefly stated that, while Rule 37 provides a postconviction remedy to correct an illegal sentence if sought within certain time limitations, this court’s case law has allowed prisoners to petition to correct an illegal sentence at any time because such a sentence is void and similar to problems of subject-matter jurisdiction in that the court reviews such allegations whether or not an objection was made to the trial court. See Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999); see also Bangs, supra; Lambert v. State, 286 Ark. 409, 692 S.W.2d 238 (1985). It appears this analysis first surfaced in Lambert, where this court held that, where a trial court exceeded its authority when imposing an illegal sentence, it became a question of subject-matter jurisdiction, which could not be waived by the parties. The Lambert case was wrong.
Of course, a circuit court does have authority to try criminal cases and to impose sentences. In other words, the trial court in this case clearly had subject-matter jurisdiction to impose Taylor’s sentence. As a consequence, the Arkansas constitutional writ of habeas corpus is not applicable here since a writ will issue (1) where a commitment is invalid on its face or (2) where the sentencing court lacked subject-matter jurisdiction to enter or modify the sentence. See Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997). It is true that a remedy was required to be in place to correct illegal sentences. The General Assembly, by enacting § 16-90-111, and this court by subsequently promulgating Rule 37 in 1994, provided that remedy. In particular, see Rule 37.2(c) which authorizes such postconviction remedy if the petitioner filed such request within the sixty-day or ninety-day periods provided in the rule.
One of the major purposes for Rule 37.2(c) was to bring some finality to postconviction remedies, so such proceedings would not arise many years after the petitioner’s direct appeal had ended. The federal courts, too, have been restricted by a one-year limitations period provided in the Anti-terrorism and Effective Death Penalty Act. To obtain habeas relief in federal court, the petitioner must exhaust state remedies, see 28 U.S.C. § 2244(d)(1). The one-year limitations period can be tolled by the timely and proper filing of state postconviction or other collateral proceedings and can be equitably tolled as well. See Cross-Bey v. Gammon, 322 F.3d 1012 (8th Cir. 2003).
In conclusion, I point out that some of these concerns expressed here were touched on in my dissent in Renshaw, 337 Ark. 494, 989 S.W.2d 575 (1991). While the majority court held there is no time limit on pursuing a writ of habeas corpus, the petitioner still is required to show the trial court did not have subject-matter jurisdiction in this case to impose Taylor’s sentence. Even so, this court’s Rule 37 grants the petitioner a clear remedy for correcting an illegal sentence by a circuit court that has jurisdiction. As the law now stands, the existing limitation language in Rule 37.2(c) has no effect whatsoever. This court should either do away with Rule 37 or decide henceforth that the Rule 37 provisions will be recognized. There is a legion of cases where this court has held that Rule 37 relief is jurisdictional and has dismissed because the petitioners were late in filing their requests within the rule’s time requirements.3 The court needs to offer some clarity to its postconviction procedures and case law. There is no better time than the present.
Act 192 of 1993 removed the language prohibiting such suspended sentences and probation sentences.
In light of the confusion concerning this court’s application of our case law and Rule 37, it is noteworthy to recall that a state procedural rule only prevents federal review when the rule is firmly established and regularly followed. See Dixon v. Dormite, 263 F.3d 774, 781 (8th Cir. 2001); see also Ford v. Georgia, 498 U.S. 411, 424 (1991) (state procedural rule constitutes an adequate bar to federal court review if it was “firmly established and regularly followed at the time it was applied by the state court”)
See Goins v. State, CR02-972 (10-9-03) (the Goins opinion is not designated for publication, but it is an example of how this court routinely hands down per curiams enforcing the limitations in Rule 37). See the attached Goins opinion.