Julius Mack Johnson v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 04-911

NOT DESIGNATED FOR PUBLICATION

JULIUS MACK JOHNSON

Appellant

v.

STATE OF ARKANSAS

Appellee

Opinion Delivered June 16, 2005

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 1987-1341, HONORABLE JOHN LANGSTON, JUDGE

AFFIRMED

PER CURIAM

In 1988, appellant pleaded guilty to a total of twelve counts of burglary and theft of property. He was sentenced as a habitual offender to an aggregate sentence of 120 years' imprisonment, to run consecutively to sentences previously imposed. His attorney filed a "no merit" brief, and we affirmed in an unpublished opinion. Johnson v. State, CR 88-116 (Ark. Jan. 17, 1989) (per curiam). We also denied a petition pursuant to Ark. R. Crim. P. 37, filed by appellant in this court. Johnson v. State, CR 88-116 (Ark. Apr. 22, 1991) (per curiam).

In 1993, appellant filed in the trial court a second Rule 37 petition, challenging the guilty pleas entered in 1988. The trial court denied the petition on the ground that appellant had already filed one such petition under Rule 37, and was not entitled to file a second. Appellant's appeal was dismissed. Johnson v. State, CR 94-175 (Ark. Apr. 11, 1994) (per curiam).

In September 2003, appellant filed a motion in the trial court requesting an "Amended Nunc Pro Tunc Judgment." In the motion, he claimed that his sentence in Case No. CR 87-1341 was incorrectly ordered to run consecutively to sentences previously imposed. According to appellant, his sentence should have started running on August 4, 1988, the date the trial court imposed the sentence. The motion was denied on the grounds that appellant's sentence was valid on its face and that the court did not have jurisdiction to modify the sentence fifteen years after it was imposed. From that order comes this appeal.

First, although appellant's motion requested a nunc pro tunc judgment, he was essentially asking the trial court to modify his 1988 sentence. 1 Generally, a trial court may not revise a valid sentence after execution of the sentence has begun. Hodge v. State, 320 Ark. 31, 34, 894 S.W.2d 927, 929 (1995). "A sentence is put into execution when the trial court issues a judgment of conviction or a commitment order." Gates v. State, 353 Ark. 333, 336, 107 S.W.3d 868, 869 (2003). In this case, the trial court entered a judgment and commitment order sentencing appellant to 120 years' imprisonment to run consecutively to his previously imposed sentences. Having done so, the trial court lacked the authority to modify the judgment. See Hodge, supra. The ruling below is affirmed.

Affirmed.

1 Even if we considered appellant's motion to be a petition for postconviction relief pursuant to Rule 37 or Ark. Code Ann. § 16-90-111 in the forms those remedies existed in 1988, the motion would have been untimely, as it was filed some fifteen years following his guilty plea. Neither remedy provided a means to modify a sentence put into execution fifteen years prior to the filing of the request for relief where the ground for relief was not sufficient, if meritorious, to render the judgment of conviction absolutely void.