Gholson v. State

308 S.W.3d 189, 2009 Ark. App. 373, 2009 Ark. App. LEXIS 320
CourtCourt of Appeals of Arkansas
DecidedMay 6, 2009
DocketCA CR 08-1100
StatusPublished
Cited by4 cases

This text of 308 S.W.3d 189 (Gholson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gholson v. State, 308 S.W.3d 189, 2009 Ark. App. 373, 2009 Ark. App. LEXIS 320 (Ark. Ct. App. 2009).

Opinion

KAREN R. BAKER, Judge.

| T Appellant Gholson appeals from the revocation of his suspended sentence and the subsequent denial of his motion to vacate the judgment and commitment order. He argues that the trial court had no authority to set aside a nolle prosequi order erroneously entered prior to his revocation hearing and that the erroneously entered order rendered the pending petition nonexistent, which violated his due-process rights. The trial court in this case appropriately entered a judgment nunc pro tunc to correct an erroneous judgment. McCuen v. State, 338 Ark. 631, 999 5.W.2d 682 (1999). The standard of review here is abuse of discretion. Id. We hold the trial court did not abuse its discretion and affirm.

On February 17, 1998, Gholson pled guilty to two counts of battery in the first degree, for which he received a sentence of 240 months’ incarceration and 120 months’ | gsuspended sentence. On October 9, 2007, the State filed a petition to revoke his suspended sentence, alleging that appellant had violated the following conditions of his suspended sentence: (1) failure to pay fine, costs, and fees; (2) commission of rape; (3) failure to notify the sheriff of his current address and employment. Various scheduling orders and an order directing the return of appellant to the county for the purpose of giving testimony in his revocation case were entered from October 9, 2007 through January 18, 2008. The last scheduling order set the revocation proceeding for March 6, 2008. An order of nolle prosequi as to the petition to revoke was signed and filed of record on February 26, 2008. Despite the fact that the nolle prosequi order was entered, a hearing on the petition to revoke was held on March 6, 2008. The March 6 hearing proceeded as scheduled, and the trial court ultimately revoked Gholson’s suspended sentence finding that he had violated the terms of his suspended sentence by committing the act of rape. No one acknowledged or referenced the entry of a nolle prosequi order in this case, prior to, during, or immediately after the revocation hearing.

Appellant later learned of the entry of the nolle prosequi order and filed a motion to set aside the judgment on March 18, 2008. He alleged that pursuant to Ark. R.Crim. P. 37.2, the February 26, 2008 order of nolle prosequi left the court without subject-matter jurisdiction to hear the revocation petition. Gholson amended that motion on March 20, 2008, to clarify that he did not become aware of the order nolle prosequi until March 17, 2008, and to note the absence of a new petition to revoke on the part of the State. On |sMarch 25, 2008, the State filed a response, alleging that the order of nolle prosequi was entered and filed erroneously. The State explained that the case number was provided to the prosecuting attorney’s office by the Administrative Office of the Courts in a list of active stale cases, and that the order was presented to the trial court in error, having been included in a stack of orders intended to dismiss stale cases in which no activity had occurred within the past year. After a hearing, the trial court set aside the nolle prosequi order, citing that it was a scrivener’s error, and simultaneously denied Gholson’s motion to set aside his revocation. This appeal followed.

The authority of the court to set aside the order of nolle prosequi directly affects the success or failure of appellant’s arguments. Appellant merely states that the “trial court did not have authority to set aside the nolle prosequi order and reinstate the revocation petition as requested by the State.” He cites no authority for that proposition, but merely reinforces his assertion by stating that “the State did not give any authority, and appellant has found none, wherein the trial court had the authority to change its order.”

Contrary to appellant’s suggestion, authority does exist for the trial court to set aside the nolle prosequi order. A circuit court judge may set aside its own order dismissing charges in a criminal case if the original order was entered in error. See Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977) (holding that a trial court may set aside its own order in the same term of court without notice to the parties if the original order was entered in error). Additional authority also supports a trial court’s authority to set aside an order erroneously | ¿entered in a criminal case. While appellant argues that our supreme court does not allow the application of Arkansas Rule of Civil Procedure 60 in criminal cases, he is only partially correct. Our supreme court has specifically acknowledged that the theory behind Rule 60 has been applied in those criminal cases where it recognized a trial court’s power to correct a judgment nunc pro tunc to make it speak the truth. State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001).

As orders entered in error do not speak the truth, courts have the power to enter an amended judgment and commitment order nunc pro tunc to correct an erroneous judgment. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999); Willis v. State, 90 Ark.App. 281, 205 S.W.3d 189 (2005). Our supreme court has defined a true clerical error, one that may be corrected by nunc pro tunc order, as “essentially one that arises not from an exercise of the court’s judicial discretion but from a mistake on the part of its officers (or perhaps someone else).” Francis v. Protective Life Ins. Co., 371 Ark. 285, 293, 265 S.W.3d 117, 123 (2007) (citing Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978)).

The trial court in this case determined that the entry of the nolle prosequi order resulted from a mistake by an officer of the court, the prosecutor, by presenting the case as one of the many cases in which no activity had occurred in over a year that were ripe for dismissal. The record supports the trial court’s finding that the order for nolle prosequi of the petition to revoke was entered in error. The form, which became the erroneously entered nolle prosequi order in this case, was generated in response to a list prepared by the | -'Administrative Office of the Courts (AOC). The AOC list was included in the supplement to the record and identified a list of active stale cases. The prosecutor stated that the intent was to nolle prosequi the stale cases. The list as presented in the briefs was twenty-nine pages of difficult to read case numbers and names including various information regarding the cases. Our review of the list indicates that neither appellant’s name nor his case number were included on the list; however, the difficulty in ascertaining the numbers or names on the list demonstrates the ease with which case names and numbers could be misread.

At the hearing on appellant’s motion to set aside judgment, the prosecutor explained that the AOC directed the circuit courts to “clean up” the dockets and to close inactive cases. The prosecutor stated that he personally “sat down and went through the docket and spent a number of hours going through those forms.... This case happened to be in the midst of that group and I erroneously looked at the docket sheet....

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Bluebook (online)
308 S.W.3d 189, 2009 Ark. App. 373, 2009 Ark. App. LEXIS 320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gholson-v-state-arkctapp-2009.