Cite as 2009 Ark. 178 ARKANSAS SUPREME COURT No. CR 08-1176 Opinion Delivered April 2, 2009 PRO SE MOTION FOR BELATED MICHAEL CLARK BRIEF [CIRCUIT COURT OF Appellant CRITTENDEN COUNTY, CR 88-148, HON. RALPH WILSON, JR., JUDGE] v. APPEAL DISMISSED; MOTION STATE OF ARKANSAS MOOT. Appellee PER CURIAM In 1988, appellant Michael Clark entered a guilty plea to charges of burglary and theft and received a sentence of ten years’ supervised probation. In 2008, appellant filed a petition in the trial court seeking a writ of error coram nobis. 1 The trial court denied the petition and appellant lodged an appeal in this court. Appellant’s brief was due on November 17, 2008, and on November 24, 2008, appellant tendered a brief that did not comply with our rules. On December 8, 2008, appellant submitted another brief that failed to comply with Arkansas Supreme Court Rule 4-7, which our clerk refused to file. On December 22, 2008, appellant once again tendered a non-compliant brief. Finally, on January 6, 2009, appellant tendered a brief that appears to comply with our rules of procedure and filed a motion for belated brief. From a review of the record, it is clear that appellant cannot prevail on appeal. An appeal 1 In those instances, as here, where the judgment of conviction was entered on a plea of guilty or nolo contendere, or the judgment of conviction was not appealed, the petition for writ of error coram nobis is filed directly in the trial court. See Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
ofthedenialofpostconvictionrelief will notbepermittedto goforwardwhereit isclear that the appellant could not prevail. Anderson v. State, 352Ark. 36, 98S.W.3d403(2003)(percuriam). Accordingly, wedismiss theappeal andthemotionis moot. The standard of review of the denial ofa writ of error coram nobis is whether thetrial court abused itsdiscretion indenying thewrit. Magbyv. State, 348 Ark. 415, 72 S.W.3d 508 (2002) (per curiam). An abuseof discretion occurs when the circuit courtactsarbitrarily or groundlessly. Cloird v. State, 357Ark.446,182 S.W.3d 477(2004). Here, thetrialcourt did not abuseitsdiscretion to denythe petition. A writ of errorcoram nobis is an extraordinarily rare remedy,more knownfor itsdenial than its approval. Larimorev. State, 341Ark.397,17S.W.3d87(2000). Thefunction of the writ is to securerelief froma judgment rendered while thereexisted some fact which would have prevented its rendition if it had been known to the trial court and which, through nonegligenceorfaultof the defendant,wasnot brought forwardbeforerenditionof judgment. Cloirdv. State,357Ark. 446, 182 S.W.3d 477 (2004). A writ oferrorcoram nobis is appropriate when an issue was not addressed or could not have been addressed at trial becauseitwas somehow hidden or unknown. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). The writisallowedonlyunder compellingcircumstances toachievejusticeandto address errors of the most fundamental nature. Pittsv. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). We have heldthata writof error coram nobiswas available to address errors found in one of fourcategories:insanity atthetime oftrial, a coerced guiltyplea, material evidence withheld by theprosecutor,athird-partyconfessionto thecrime duringthetimebetween conviction andappeal. Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (percuriam). -2-
The basis upon which appellant sought the writ was his claim that the period of probation to which he was sentenced exceeded the statutory limit in effect. Appellant’s claim of error does not fall within one of the recognized categories of error. Nor do we need to consider whether the claimed error is of the requisite fundamental nature, because the facts upon which the error was asserted were not hidden or unknown. The statutes that appellant cites were available at the time of appellant’s trial and conviction, and the alleged error could have been addressed at that time. Appellant’s petition did not set forth a claim cognizable for error coram nobis relief and the trial court did not err in denying the petition. Appeal dismissed; motion moot. -3-
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