concurring. It is paramount to recognize that Article 2, Section 11 of the Constitution of Arkansas guarantees the efficacy of the petition for writ of habeas corpus and does not place a time limit on the exercise of the right of one who is being detained without lawful authority to apply for issuance of the writ. ” Indeed, the Arkansas Constitution expressly disallows suspension of the writ, “except by the General Assembly, in case of rebellion, insurrection or invasion, when the public safety may require it.” Ark. Const. Art. 2, § 11. Review under the doctrine of habeas corpus is limited to two claims: whether the trial court lacked jurisdiction or whether the petitioner’s judgment and commitment order was invalid on its face. E.g., Flowers v. Norris, 347 Ark. 437, 68 S.W.3d 289 (2002).
We have consistently held that an illegal sentence is one which is illegal “on its face.” E.g., Abdullah v. State, 290 Ark. 537, 720 S.W.2d 313 (1986). An illegal sentence is a void sentence because the trial court lacked authority to impose it. See Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999). A valid sentence may not be modified once executed, but an illegal sentence, even though partially executed, may be corrected. Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). The remedy for an illegal sentence is not dismissal of all related proceedings and release from imprisonment; the general rule is that the original sentence, even though partially executed, may be corrected by the sentencing court. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). An excessive sentence upon a lawful conviction is not absolutely void, so as to entitle the prisoner to be discharged on habeas corpus. In re Bonner, 151 U.S. 242 (1894).
Where an error has nothing to do with the issue of guilt or innocence and relates only to punishment, the appellate court may correct it in lieu of reversing and remanding. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003); State v. Fountain, 350 Ark. 437, 88 S.W.3d 411 (2002); Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Renshaw v. Norris, supra; Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Bangs, supra; Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992); McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974).
Convicted defendants have three traditional avenues for the correction of an illegal sentence: a petition to correct sentence pursuant to Ark. Code Ann. § 16-90-111, a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1, and a petition for writ of habeas corpus. It is important to delineate among those remedies and to emphasize that only habeas corpus allows for the correction of an illegal sentence at any time.
In all three available remedies, we have consistently held that no objection was necessary at trial as the issue may be raised for the first time on appeal or in a petition for postconviction relief because a circuit court acting in excess of its authority in sentencing can be likened to a matter of subject matter jurisdiction; hence, the issue can be raised sua sponte. E.g., Harness v. State, supra; Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002); Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002); Waddle v. Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Bangs v. State, supra; Lambert v. State, supra. See also Timmons v. State, 81 Ark. App. 219, 100 S.W.3d 52, (2003); Palmer v. State, 31. Ark. App. 97, 788 S.W.2d 248 (1990); Jones v. State, 27 Ark. App. 24, 765 S.W.2d 15 (1989). This is not to say, however, that time limits cannot be placed on raising the issue of whether a sentence is illegal when the assertion of error is made under Rule 37.1 or under Ark. Code Ann. § 16-90-111.
Arkansas Rule of Criminal Procedure 37.2(b) allows for the correction of an illegal sentence by the trial court, including a sentence imposed pursuant to a plea of guilty, provided that the claim is addressed to the court with the time constraints set by the rule.1 Rule 37.2(c) mandates a time limit of ninety days following a plea of guilty or sixty days following the issuance of the appellate mandate when a petitioner seeks to correct an illegal sentence or a sentence imposed in an illegal manner. Time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition regardless of the merits of claims contained in it. Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996); Hamilton v. State, 323 Ark. 614, 918 S.W.2d 113 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989).
Arkansas Code Annotated § 16-90-111 provides that a circuit court may correct an illegal sentence at any time, and may correct a sentence imposed in an illegal manner within either ninety days from the imposition of sentence or sixty days from the issuance of an appellate mandate. The time limits imposed by Rule 37.2(c), however, supersede those in § 16-90-111, and thus a court may not correct an illegal sentence under § 16-90-111 once the time limits set by Rule 37.2(c) have elaspsed. Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); and Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994). This limitation flows from the text of Ark. R. Cr. P. 37.2(b), which states that all grounds for postconviction relief, including claims that a sentence is illegal or was illegally imposed, must be raised in a Rule 37.1 petition.2
Finally, a petitioner may seek postconviction relief to correct an illegal sentence via a petition for writ of habeas corpus. There is a well-acknowledged distinction between a petition for habeas corpus and a petition for postconviction relief under Rule 37.1 and Ark. Code Ann. § 16-90-111. In Waddle v. Sargent, 313 Ark. 539, 313 S.W.2d 539 (1993), we rejected the State’s argument that the petitioner was procedurally barred in a habeas proceeding by virtue of his appeal of a denial of a motion to correct illegal sentence having been dismissed. In Cothrine v. State, 322 Ark. 112, 907 S.W.2d 134 (1995), we reiterated that a writ of habeas corpus cannot be substituted for a petition for postconviction relief in that post-conviction remedies of § 16-90-111 and Rule 37.1 are filed in the original trial court, seeking to correct an error made there. Id. A habeas corpus proceeding, on the other hand, is filed in the circuit court where the petitioner is incarcerated and is based upon the theory that the petitioner is being detained without lawful authority. Id.; see also McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992); George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985).
No matter the path followed, be it statutory, Rule 37.1, or a petition for writ of habeas corpus, this court has consistently restated the important rule announced in Lambert that “[i]t does not matter that no objection was made at the time since the court was acting in excess of its authority and that was a question of subject matter jurisdiction which cannot be waived by the parties.” 286 Ark. 408, 409, 692 S.W.2d 238, 239 (1985) (emphasis added). Accordingly, when a court acts in excess of its authority, no objection was necessary below because a court acting in excess of its authority is a matter of subject matter jurisdiction and subject to correction by the court.
The likening of the correction of an illegal sentence to a matter of subject matter jurisdiction has led to some confusion even though this court and the court of appeals have consistently restated the principle that the sentence of a court acting outside its authority is subject to correction. For this reason, it is necessary that we clarify that while a writ of habeas corpus can issue at any time to correct an illegal sentence imposed on a petitioner who files his petition in the court in the county in which he is incarcerated, petitions for relief under Rule 37.1 and Ark. Code Ann. § 16-90-111 are filed in the original trial court, and, thus, are subject to jurisdictional constraints inherent in Rule 37.1 and § 16-90-111.
Brown, J., joins.Petitions to amend incorrect or illegal sentences are an exception to Ark. R. Cr. P. 24.3(b), which states there shall be no appeal from a plea of guilty. E.g. Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999).
Rule 37.1 does not supersede the authority of a trial court under § 16-90-111 to modify a condition of probation. See Reeves v. State, 339 Ark. 304, 5 S.W.3d 41(1999). Rule 37.1 provides relief for those persons in custody, whereas a person on probation is by definition not in custody. Id. Thus, Rule 37 and its time requirements do not apply. Id.