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Buice v. State11/9/1999
at the failure to appeal from a null and void order precludes a subsequent attack on that order when it never existed legally although it may have existed physically. One other point should be made. Even if Buice were found to be procedurally barred from raising the issue of his illegal sentence because of his failure to perfect an appeal from the denial of his first post-conviction relief petition, it appears to me that since his claim involves the denial of a fundamental right and that a substantial right is affected, we should notice it under the plain error doctrine. The right of an appellate court to notice plain error is addressed in M.R.E. 103(d). Under the comment to the rule, the following guidance and explanation are given:
Subsection (d), regarding plain error, is a restatement of that doctrine as it existed in pre-rule practice. It reflects a policy to administer the law fairly and justly. A party is protected by the plain error rule when (1) he has failed to perfect his appeal and (2) when a substantial right is affected. . . . The plain error may be applied in either criminal cases or civil cases. (emphasis added)
. For the reasons stated, I would reverse and render the decision of the trial court revoking Buice's sentence.
KING, P.J., JOINS THIS SEPARATE WRITTEN OPINION.
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