ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 29, 2001

BOB HARRIS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 94-1273

PETITION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF CRAWFORD COUNTY, CR 93-328 (III)]

PETITION DENIED

In 1994, Bob Harris was found guilty of having engaged in sexual intercourse or deviate sexual activity with a girl who was under fourteen years of age. He was sentenced to an aggregate sentence of thirty-three years' imprisonment. We affirmed. Harris v. State, 320 Ark. 677, 899 S.W.2d 459 (1995).

Harris now seeks to have this court reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. -A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000). The function of the writ of coram nobis is to secure relief from a judgment rendered while there existed some fact which would haveprevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment. Larimore, supra. We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999), citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. After reviewing the instant petition, we do not find that petitioner has stated good cause to grant leave to proceed with a petition for writ of error coram nobis in the trial court. ··²TopOfPage²··

··²TopOfPage²··Petitioner Harris contends that the prosecutrix has recently recanted her testimony that he engaged in sexual intercourse or deviate sexual activity with her. We have held in Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990), and Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940), that a writ of error coram nobis will not lie for recanted testimony. Without reference to Taylor or Smith, petitioner urges this court to find that our decision in Larimore, supra, expanded the remedy to include recanted testimony. He argues that by withholding evidence, both from him and the State, the prosecutrix created a situation in which there were facts extrinsic to the record that could not have been known to either the defense or the prosecution. He further asserts that a fundamental error occurred that falls within the preview of a coram nobis proceeding.

We find that Taylor and Smith are controlling. In Taylor, while the judgment was on

appeal to this court, the appellant filed a petition for writ of error coram nobis claiming to be entitled to a new trial on the charge of murder of which she had been convicted. The petition was based on the claim that a key prosecution witness at her trial had recanted part of his testimony that implicated her in the murder. We denied the petition, noting that the writ is granted only when there is an error of fact extrinsic to the record such as insanity at the time of trial, a coerced plea of guilty, or material evidence withheld by the prosecutor. While we noted that there was other evidence of petitioner's guilt besides that which was alleged to have been recanted, we concluded that petitioner's claim did not fit within the remedy sought. Taylor, supra, at 594.

In Smith, the principal witness against the petitioner had recanted his testimony and two other persons had confessed to the offense of which he had been convicted. The writ was denied on the ground that a new trial may not be granted by employment of the writ merely because of the development after the trial of the utter unreliability of the State's witness so that grave doubts of guilt appear. Smith, supra, at 769. We find nothing in our later decisions, including Larrimore, supra, that expanded the remedy to allow a claim of recanted testimony to be encompassed by the writ.

The scope of writ of error coram nobis proceedings was reiterated in Brown v. State, 330 Ark. 627, 955 S.W.2d 901 (1997), in which we held that a third-party confession discovered after affirmance of the judgment was untimely. As we indicated in Brown, clemency is the petitioner's remedy when an allegation lies outside the scope of an error coram nobis proceeding. Brown,supra, at 632.

Petition denied.