Russaw v. State

784 S.W.2d 170, 301 Ark. 386, 1990 Ark. LEXIS 92

• Court: Supreme Court of Arkansas
• Decided: February 20, 1990
• Docket: CR 89-209
• Status: Published

Opinion

Per Curiam.

The petitioner Steve Edward Russaw was convicted of first degree battery and sentenced to ten years imprisonment and fined $10,000. After his jury trial, he requested that, instead of the fine, the trial court sentence him to another year of commitment to be served consecutively to the ten year sentence. The trial court first considered the request but then ruled that since his family indicated that they could raise that amount of money for an appeal bond, he should pay the fine which the jury had recommended. The conviction was affirmed by the Arkansas Court of Appeals in an opinion not designated for publication. Russaw v. State, CACR 88-289 (August 23,1989). The petitioner now seeks permission to proceed in circuit court for post-conviction relief.

The petitioner alleges that on October 4,1989, after his conviction was ¿(firmed, he was taken before the trial court where the trial court withdrew the $10,000 fine and imposed a one year sentence to be served consecutively to the first ten year sentence. The petitioner argues that the court was acting without its jurisdiction to impose two sentences for the same crime and that he was denied a fair trial because he was not represented by counsel for the October 4 hearing. The hearing does not appear in the transcript. Since there is no certified record from which we can determine whether the petitioner has raised an issue cognizable under Rule 37, we grant him permission to proceed in circuit court with a petition limited to the issue of whether the trial court had jurisdiction to modify the sentence once it had been put into execution. See Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984).

Petition granted.