In re Mack

562 S.W.3d 845

Opinion

Hart, J., dissents.

I dissent. The only issue before this court is the circuit court's denial of Mack's *847in forma pauperis petition. The circuit court denied Mack's in forma pauperis petition pursuant to Rule 72 based upon its holding that, while Mack is indigent, his petition failed to state a colorable cause of action. This court has held that that habeas will lie where the confinement order is illegal on its face or the court that issued the confinement order was without jurisdiction. Smith v. Hobbs , 2015 Ark. 312, 468 S.W.3d 269. The majority suggests that Mack's claim is limited to an assertion of an involuntary plea or improper plea procedures that would not be cognizable in habeas proceedings. The majority misconstrues Mack's argument; Mack's petition argues that his confinement order is illegal on its face because the order fails to comply with Rule 24 of the Arkansas Rules of Criminal Procedure. Insofar as the claim in his petition, which is all the circuit court was permitted to consider in making this determination under Rule 72, and without addressing the merits of the underlying claim, Mack has at least stated a colorable cause of action. Accordingly, I would reverse the circuit court's denial of Mack's in forma pauperis petition.