                                     Cite as 2018 Ark. 21
                   SUPREME COURT OF ARKANSAS
                                        No.   CR-17-920


                                                 Opinion Delivered January   25, 2018
JAMES EDWARD WHITNEY
                   PETITIONER PRO SE PETITION FOR REVIEW EN
                              BANC OF THE CLERK’S DECISION
V.                            [WASHINGTON COUNTY CIRCUIT
                              COURT, NO. 72CR-13-912]
STATE OF ARKANSAS
                  RESPONDENT HONORABLE MARK LINDSAY, JUDGE

                                                 PETITION TREATED AS MOTION FOR
                                                 RULE ON CLERK AND DISMISSED.


                              JOHN DAN KEMP, Chief Justice

       Petitioner James Edward Whitney filed in this court a pro se “petition for review en

banc of the clerks [sic] decision” in which he requests permission to proceed with an appeal

of an order entered by the trial court denying his pro se petition for dismissal of fines, fees,

and costs. Because Whitney’s petition for dismissal did not provide a basis for the trial

court to grant relief, it is clear that the appeal cannot succeed. We therefore treat the

petition for review as a motion for rule on clerk, and we dismiss the motion.

       A jury in the Washington County Circuit Court convicted Whitney on eighteen

counts of possession of child pornography, and the judgment imposed an aggregate

sentence of 6,480 months’ imprisonment in the Arkansas Department of Correction,
along with $180,000 in fines and several fees.1 More than a year after the judgment of

conviction was entered, Whitney filed a petition in the trial court asking that the fines,

fees, and costs noted on the judgment be “dismissed” because he could not pay them, and

that the trial court “run these fines, fees, and court costs current” with his term of

imprisonment.2 The trial court denied the petition on the basis that Whitney failed to

state facts on which relief could be granted.

       Whitney contends in his petition, and there is ample evidence, that he filed a timely

notice of appeal of the order and that the record was also timely tendered to our clerk.3

Our clerk declined to file the record as tendered, however, because the only notice of

appeal contained in the record when it was submitted was not one filed to appeal the order

denying Whitney’s petition for dismissal of fines, fees and costs. Nevertheless, while a



       1
         The fees included a $20 booking/administration fee, a $10 collection fee per
month, two fees of $250 each for a DNA sample and for offenders categorized as sex
offenders, plus a fee in an amount “as ordered” for use of a public defender. Whitney
appealed the conviction, and the Arkansas Court of Appeals affirmed the judgment.
Whitney v. State, 2017 Ark. App. 341, 520 S.W.3d 326.
       2
          The terms listed on the judgment were that the fines and fees imposed were to be
collected in installments and that payments were to be made within sixty days of Whitney’s
release from the Arkansas Department of Correction.
       3
         Whitney attached a file-marked copy of his notice of appeal with his petition in
this court. After the record had been submitted, the circuit court clerk tendered to our
clerk a certified copy of the same notice of appeal file-marked on the seventh day after the
order was entered.


                                                2
mistake by the circuit clerk in failing to include the correct notice of appeal in the record

might provide Whitney with sufficient cause to excuse a procedural default, an appeal from

an order that denied a petition for a postconviction remedy will not be permitted to go

forward when it is clear that the petitioner could not prevail. Justus v. State, 2012 Ark. 91.

       Whitney’s petition in the circuit court sought a modification of his sentence. He

did not allege that the sentences were either illegal or illegally imposed, only that he could

not pay the money.4 Generally speaking, absent a statute, rule, or available writ, once the

circuit court enters a judgment and commitment order, jurisdiction is transferred to the

executive branch of our government. Richie v. State, 2009 Ark. 602, 357 S.W.3d 909.

Without an exception as noted, the trial court lacks subject-matter jurisdiction. Gavin v.

State, 354 Ark. 425, 125 S.W.3d 189 (2003). We have long held that a trial court loses

jurisdiction to modify or amend an original sentence once the sentence is put into

execution. Id. A sentence by a circuit court to pay a fine is put into execution when the

judgment of conviction is entered. Id. Because the trial court did not have jurisdiction to

grant the relief that Whitney requested in his petition for dismissal, Whitney cannot

prevail on appeal of the order denying that relief.


       4
         Whitney made some conclusory allegations about the imposition of the sentences
in that he alleged he “is being held captive illegally” and that his conviction was one for
which he was “illegally imprisoned.” Yet he set out no specific claim in that regard and did
not challenge the sentences imposed as falling outside the statutory range.


                                               3
Petition treated as motion for rule on clerk and dismissed.




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