Murry v. Hobbs
Decision Date | 31 January 2013 |
Docket Number | No. 11-1255,11-1255 |
Parties | ERIC LAVELL MURRY APPELLANT v. RAY HOBBS AND WILLIAM STRAUGHN APPELLEES |
Court | Arkansas Supreme Court |
PRO SE MOTIONS TO AMEND
ARGUMENT IN APPELLANT'S BRIEF
[JEFFERSON COUNTY CIRCUIT
COURT, CV 11-626, HON. JODI
On November 7, 2005, appellant Eric Lavell Murry entered a plea of guilty to charges of theft by receiving, being a felon in possession of a firearm, and possession with intent to deliver a controlled substance, for which he received a ten-year suspended sentence on each count and was ordered to pay $500 in court costs. A petition for revocation of suspended sentence was filed in 2009, alleging that appellant had failed to pay court costs; had failed to notify the sheriff of appellant's current address and employment; and had been charged with burglary, theft, and first-degree criminal mischief. Following a revocation hearing, the Crittenden County Circuit Court revoked appellant's suspended imposition of sentence and sentenced him to 360 months' incarceration in the Arkansas Department of Correction. The Arkansas Court of Appeals affirmed. Murry v. State, 2010 Ark. App. 782.
In 2011, appellant, who is incarcerated in the custody of the Arkansas Department of Correction by virtue of the 2005 conviction, filed in the circuit court in the county where he isincarcerated a pro se petition for writ of habeas corpus pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2006) in which he challenged the judgment. The petition was denied, and appellant lodged an appeal here.
Appellant now seeks by pro se motions leave to amend his brief. We need not address the merits of the motions because it is clear from the record that appellant could not prevail on appeal. Accordingly, the appeal is dismissed, and the motions are moot. An appeal from an order that denied a petition for postconviction relief, including a petition for writ of habeas corpus, will not be permitted to go forward where it is clear that the appellant could not prevail. McHaney v. Hobbs, 2012 Ark. 361(per curiam); Bliss v. Hobbs, 2012 Ark. 315 (per curiam); McCullough v. State, 2010 Ark. 394 (per curiam); Moore v. Hobbs, 2010 Ark. 380 (per curiam); Hutcherson v. State, 2010 Ark. 368 (per curiam); Washington v. Norris, 2010 Ark. 104 (per curiam); Edwards v. State, 2010 Ark. 85 (per curiam); Grissom v. State, 2009 Ark. 557 (per curiam); Pineda v. Norris, 2009 Ark. 471 (per curiam).
Appellant failed to demonstrate in his petition that the writ was warranted. The burden is on the petitioner in a petition for writ of habeas corpus to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Culberson v. State, 2012 Ark. 112 (per curiam); Moore, 2010 Ark. 380; Young v. Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). Under our statute, a petitioner who does not allege his actual innocence1 must plead either the facialinvalidity of the judgment or the lack of jurisdiction by the trial court and make a "showing by affidavit or other evidence [of] probable cause to believe" that he is illegally detained. Young, 365 Ark. at 221, 226 S.W.3d at 798-99; Ark. Code Ann. § 16-112-103(a)(1).
In Eason & Fletcher, this court further held that an information must be challenged in the trial court before it can be declared void. We found that neither Eason nor Fletcher, at any stage in the proceedings, objected to the form of the information. Consequently, we held that a "presumption of verity" attached to the information throughout the trial, and we reversed the judgment with directions to dismiss the writs of habeas corpus.
Since our decision in Eason & Fletcher, we have consistently held that the proper time to object to the form or sufficiency of an indictment or information is prior to trial. See Davis v. State, 2011 Ark. 88 (per curiam); see also Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); England v. State, 234 Ark. 421, 352 S.W.2d 582 (1962); Ark. Code Ann. § 16-85-705 (1987). We have declined to review the sufficiency of an information on appeal when there was no properobjection in the court below. Prince, 304 Ark. 692, 805 S.W.2d 46. If we considered the issue to be jurisdictional, we could have overlooked the failure to object and reversed the conviction, if necessary, on our own motion. See Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). Accordingly, appellant here did not...
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...to object to the form or sufficiency of a charging instrument is prior to trial. Jones v. State, 2014 Ark. 37 (per curiam); Murry v. Hobbs, 2013 Ark. 29 (per curiam); see also Davis v. State, 2011 Ark. 88 (per curiam); Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); Englandv. State, 23......
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