Perez v. State , 2015 Ark. 120 ( 2015 )

Cite as 2015 Ark. 120
SUPREME COURT OF ARKANSAS
No. CR-14-736
Opinion Delivered March 19, 2015
OMAR PEREZ PRO SE APPEAL FROM THE
APPELLANT BENTON COUNTY CIRCUIT COURT
[NO. 04CR-06-46]
V.
HONORABLE BRAD L. KARREN,
JUDGE
STATE OF ARKANSAS
APPELLEE APPEAL DISMISSED.
PER CURIAM
In 2013, appellant Omar Perez entered a plea of guilty to multiple felony offenses in case
number 04CR-06-46 and was sentenced to 120 months’ imprisonment with credit for forty-five
days spent in custody before sentencing. Imposition of an additional 120 months’ imprisonment
was suspended. The judgment was entered on September 6, 2013.
On May 21, 2014, appellant filed a pro se motion in the trial court in which he alleged
that he was entitled to additional credit against his sentence for days held in custody. The trial
court denied the motion on the ground that it was not timely filed. Appellant brings this appeal.
We will reverse a trial court’s decision granting or denying postconviction relief only when that
decision is clearly erroneous. Hayes v. State, 2014 Ark. 104, 431 S.W.3d 882.
Appellant argues on appeal that his request for jail-time credit cannot be considered to
be untimely filed because the failure to accord him full credit for the days he served in pretrial
detention rendered the judgment illegal. Appellant’s claim is unavailing. An illegal sentence is
one that is illegal on its face. Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989). A sentence is
illegal on its face when it exceeds the statutory maximum for the offense of which the defendant
Cite as 2015 Ark. 120
was convicted. Atkins v. State, 2014 Ark. 393, 441 S.W.3d 19 (per curiam). Appellant does not
contend that his sentence was outside the range for the offenses of which he was convicted.
This court has specifically held that a request for credit against a sentence for time spent
in custody is a request for modification of a sentence imposed in an illegal manner. Holloway,
2010 Ark. 42, at 1; Cooley, 322 Ark. at 351, 909 S.W.2d at 313 (citing Delph, 300 Ark. 492, 780
S.W.2d 527 (Defendant’s motion for credit for time spent in a psychiatric hospital before trial
was, at most, a motion for correction of a sentence imposed in an illegal manner.)).
A claim that a sentence was illegally imposed must be raised in a petition under Arkansas
Rule of Criminal Procedure 37.1 filed in the trial court within ninety days of the date of entry
of judgment if the conviction was obtained on a plea of guilty as provided by Rule 37.2(c). See
Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994) (per curiam) (Rule 37 superseded the time
limits imposed in Arkansas Code Annotated section 16-90-111(a)(b)(1) for correction or
reduction of a sentence imposed in an illegal manner.). Regardless of the label placed on a
pleading by the petitioner, a pleading that mounts a collateral attack on a judgment seeking to
correct a sentence imposed in an illegal manner is governed by the time provisions of the Rule.
See Green v. State, 2014 Ark. 115 (per curiam).
The time limitations imposed in Rule 37.2(c) are jurisdictional in nature, and, if they are
not met, the trial court lacks jurisdiction to grant postconviction relief. Parker v. State, 2014 Ark.
542, ___ S.W.3d ___ (per curiam); Talley v. State, 2012 Ark. 314 (per curiam). The motion filed
by appellant was not timely filed because appellant filed it more than eight months after the
judgment had been entered of record in 2013; therefore, the trial court had no jurisdiction to
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Cite as 2015 Ark. 120
grant the relief sought. When the lower court lacks jurisdiction, the appellate court also lacks
jurisdiction. Ussery v. State, 2014 Ark. 186 (per curiam). Accordingly, the appeal is dismissed.
Appeal dismissed.
Omar Perez, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.
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