State v. Rowe

Jim Hannah, Chief Justice,

dissenting. While I agree with the majority’s conclusion that the State failed to timely file its appeal and the conclusion that Rowe’s motion was not a posttrial motion pursuant to Arkansas Rule of Criminal Procedure 33.3, I disagree with the majority’s conclusion that the circuit court did not have the authority to rule upon Rowe’s motion pursuant to Arkansas Rule of Civil Procedure 60(b). Accordingly, I dissent, and I would deny the State’s petition for writ of certiorari.

A circuit court may enter an order nunc pro tunc at any time to make the record “speak the truth and to correct a clerical mistake but not to modify a judicial act.” McCuen v. State, 338 Ark. 631, 634, 999 S.W.2d 682, 683 (1999) (emphasis added). At the August 24, 2006 hearing, the circuit court made the following rulings:

I’m going to sentence you to ten years in the Arkansas Department of Correction, give you credit for 30 days on this. I’m going to declare the 70 percent provision as applied to be unconstitutional and that will be reflected in the judgment and it will be concurrent on all counts and all cases.
And then on the other case, actually, it will be the same thing, ten years — let me make this clear because the record has to be clear. On count one — 2005-2876, ten years on count one. I’m finding the provisions to be unconstitutional. Counts two and three, $2500 fine and that’s concurrent with Case No. 2005-4460. Counts four and five will merge.
Then finally in the last case, which is 2004-790, count one again, ten years. I’m going to declare the 70 per cent rule unconstitutional and inapplicable.

While the circuit court indicated from the bench that the rulings regarding Act 1782 would be included in the judgment, the rulings were not incorporated into either the original or amended judgment and commitment order. Thereafter, the circuit court, in its written order filed July 20, 2007, concluded that Act 1782 was unconstitutional. In no way did the circuit court modify a judicial act. Rather, it reiterated its August 24, 2006 ruling that Act 1782 was unconstitutional.

The majority states that the circuit court’s order was an attempt to have the record reflect what should have happened and not what happened but was not recorded because the written order “provided a lengthy explanation as to why Act 1782 was unconstitutional and stated that Rowe’s parole eligibility would not be affected by the seventy percent (70%) rule.” I do not agree. The bottom line is that at the August 24, 2006 hearing and in the July 20, 2007 order, the circuit court found Act 1782 unconstitutional and explained that the 70% provision would not be applied to Rowe’s sentence. The fact that a circuit court’s written order will often explain with specificity its oral ruling from the bench should not be viewed as an attempt by the circuit court to have the record reflect what should have happened and not what happened but was not recorded. Because I believe the circuit court had the authority to enter the order pursuant to Rule 60(b), I would deny the State’s petition for writ of certiorari.

As a final note, I wish to mention that the State argued that Rowe did not have standing to challenge the parole-eligibility statute because, at the time he filed his motion for declaratory judgment, he had not been sentenced. This court will grant a writ of certiorari when the circuit court lacked jurisdiction to enter an order. However, this court does not treat standing as a jurisdictional issue. See, e.g., State v. Houpt, 302 Ark. 188, 788 S.W.2d 239 (1990). Therefore, a challenge to a party’s standing should be raised in an appeal, not in a petition for writ of certiorari. The remedy of an appeal was available to the State in this case; however, the State waived its right to appeal when it failed to timely file its notice of appeal. A petition for writ of certiorari cannot be used as a substitute for an appeal.

Danielson, J., joins.