text:
    David Kelly CHAPMAN v. STATE of Arkansas
    CR 00-795
    38 S.W.3d 305
    Supreme Court of Arkansas
    Opinion delivered February 15, 2001

      Robert L. Herzfeld, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: Lauren Elizabeth Heil, Ass’t Att’y Gen., for appellee.
   W.H. “Dub” Arnold,W.H. “Dub” Arnold, Chief Justice.

Appellant, David Kelly Chapman, ice. guilty by a jury of manufacturing a controlled substance, methamphetamine, in violation of Ark. Code Ann. section 5-64-401 (Repl. 1997). Chapman, on parole at the time of his conviction, was sentenced to life imprisonment in the Arkansas Department of Correction and fined $25,000. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(a)(2) (2000). Appellant raises two points on appeal. First, Chapman contends that the evidence was insufficient to support his conviction. Second, he argues that the trial court erred by admitting evidence of a law-enforcement investigative report as a business-record exception to the hearsay rule. We find no merit in appellant’s arguments, and we affirm his conviction.

Background

On October 22, 1998, Richard Houchin of the Cleburne County Sheriff s office and Bo Hudson, appellant’s parole officer in White County, decided to make a “home visit” to Chapman’s Cleburne County address. Hudson was unaware that Chapman had a residence in Cleburne County. Prior to the visit, Officer Houchin had received a report from Sonny Kennedy, a sales clerk at the Cleburne County Building Center, that Chapman had purchased materials well-known to be used in the manufacture of methamphetamine. At trial, Kennedy testified that he had seen appellant purchase such items twice.

When Houchin and Hudson arrived at appellant’s home, accompanied by several other officers, no one was in the house. They investigated several sheds located on the property and discovered that one was locked. They also discovered a man behind the-house, later identified as Bruce Hargrove, who did not have access to either the locked shed or the house but acknowledged that he “stayed there on occasion.”

About twenty minutes after the police arrived, Chapman drove up in a Lincoln four door sedan. As Officer Hudson approached him, appellant put his car in reverse and refused to open the door. Eventually, the car stalled and appellant was apprehended. A woman identified as Tracy Weir was in the passenger seat. Officer Hudson reported that he smelled a strong ammonia odor both outside appellant’s house and around appellant’s car. Subsequently, police searched the car, the house, and the sheds.

According to Chris Harrison, a drug chemist with the State Crime Laboratory, the search revealed all materials necessary for the manufacture of methamphetamine, including pseudoephedrine tablets, starting fluid, sulfuric acid, stripped battery casings, pure lithium, solvents, acetone, mineral spirits, nicotinamide, denatured alcohol, coffee filters, scales, a gas mask, metal fittings, a funnel, strips of plastic tubing, a mini-vac, a tank of anhydrous ammonia, syringes, and trace amounts of methamphetamine on a spoon. A majority of the materials were found in the locked shed. Officers also discovered a cooler in the back seat of appellant’s car that contained 12.739 grams of methamphetamine in oil form. Finally, appellant’s fingerprint was found on a can of denatured alcohol.

I. Sufficiency of evidence

For his first point on appeal, Chapman challenges the sufficiency of the evidence supporting his conviction for manufacturing methamphetamine. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is any substantial evidence to support it, when viewed in the light most favorable to the State. Freeman v. State, 331 Ark. 130, 131-32, 959 S.W.2d 400, 401 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. Notably, the evidence may be either direct or circumstantial. Gillie v. State, 305 Ark. 296, 301, 808 S.W.2d 320, 322 (1991). Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other “reasonable” conclusion. Gillie, 305 Ark. at 301, 808 S.W.2d at 322 (citing Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986)).

Here, Chapman contends that the State failed to introduce any direct evidence that he was involved in manufacturing methamphetamine. He reasons that his purchase of tubing and sulfuric acid, items that can be used in the manufacture of methamphetamine, was a legal purchase. Additionally, he points out that the State offered no proof that these items were used in manufacturing any methamphetamine.

Similarly, Chapman claims that the circumstantial evidence introduced at trial was insufficient to sustain his conviction because another reasonable theory explained the evidence. Appellant suggests that the circumstantial evidence, which consisted of a great deal of methamphetamine-manufacturing materials found around his home and in the car he was driving, actually belonged to his roommate, Bruce Hargrove, and to Tracy Weir. In support of appellant’s theory, Weir testified that she was responsible for the materials found in the car and that she and Hargrove were making the methamphetamine. Chapman suggests that because the State failed to contradict Weir’s testimony, which presented a reasonable explanation for the presence of the materials, the circumstantial evidence may not sustain his conviction. As to why appellant’s fingerprint was found on a can of denatured alcohol, another item used in manufacturing methamphetamine, Chapman insists that there was no proof that he used the product for manufacturing. Rather, appellant insists that he may have come into contact with the can by simply moving it or throwing it away.

In response, the State points out that it presented evidence found on appellant’s property of all of the ingredients, solvents, chemicals, and hardware necessary to manufacture methamphetamine. Further, Sonny Kennedy testified that he saw Chapman twice purchasing items known to be used in manufacturing methamphetamine. Moreover, appellant was detained after driving a car containing a leaking ammonia tank and 12.739 grams of methamphetamine in unprocessed oil form.

Chapman’s attempted flight at the scene of the search provides additional evidence of guilt. Flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt and may be considered as corroboration of evidence tending to establish guilt. Passley v. State, 323 Ark. at 301, 306, 915 S.W.2d 248, 251; Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996). Chapman’s failure to notify his parole officer of his residence in Cleburne County also suggests an intent to conceal his activities.

Further, we cannot say that appellant’s explanation for the evidence provided the jury with a reasonable theory to explain its existence. First, Hargrove, Chapman’s alleged roommate, did not appear to have access to either the house or the shed where the majority of the materials were located. Second, the jury was free to disregard Weir’s testimony that she and Hargrove were responsible for manufacturing the methamphetamine. We have long held that the trier of fact is free to believe all or part of a witness’s testimony. Freeman, 331 Ark. at 134, 959 S.W.2d at 402 (citing Mosley v. State, 323 Ark. at 250, 914 S.W.2d at 734)).

The credibility of witnesses is an issue for the jury and not for this court. Marta v. State, 336 Ark. 67, 74, 983 S.W.2d 924, 928 (citing Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998); Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998)). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). We have also held that a defendant’s improbable explanation of suspicious circumstances may be admissible as proof of guilt. Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Bennett v. State, 297 Ark. 115, 754 S.W.2d 799 (1988).

In sum, we agree with the State that the evidence presented was sufficient to exclude Chapman’s theory that he was an innocent bystander. We also conclude that the jury need not have resorted to speculation or conjecture to find that appellant manufactured methamphetamine. Viewed in the light most favorable to the State, we hold that substantial evidence supports appellant’s conviction for manufacturing methamphetamine.

II. Admission of evidence

Appellant next challenges the trial court’s admission of a list of items seized from Chapman’s property that was introduced by the State under the business-records exception to the hearsay rule. See Ark. R. Evid. 803(6). According to Chapman, the report was inadmissible hearsay and clearly prohibited by Ark. R. Evid. 803 (8) (i). Rule 803(8) defines the public-records-and-reports hearsay exception. Notably, subsection (i) carves out from the public-records exception “investigative reports by police and other law enforcement personnel.” In light of the plain language of Rule 803(8) (i), Chapman asserts that the trial court erred by admitting the fist of seized items. Moreover, appellant argues on appeal that the trial court abused its discretion by allowing the evidence pursuant to Rule 803(6), the business-records hearsay exception, rather than excluding it per Rule 803 (8) (i). Chapman also claims that the admission resulted in prejudicial error.

On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 117 S. Ct. 246 (1996). Further, the balancing of probative value against prejudice, pursuant to Ark. R. Evid. 403, is a matter left to the sound discretion of the trial judge, and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Robinson v. State, 314 Ark. 243, 861 S.W.2d 548 (1993).

The State maintains that appellant’s argument is procedurally barred. We agree. Contrary to appellant’s arguments on appeal, the record plainly reveals that Chapman actually objected to the report’s introduction on the basis that the witness testifying lacked “personal knowledge as to the location” where the items were found. The State sought to introduce the challenged list following the conclusion of chemist Scott Harrison’s testimony. Chapman objected. The relevant colloquy follows:

Attorney: You said you dictated this report?
Harrison: Yes.
Attorney: Ah, and this report says where these items were recovered, is that correct?
Harrison: Yes.
ATTORNEY: You have personal knowledge that that’s where that item was recovered?
HARRISON: Not of every specific item, no.
ATTORNEY: Then I object, Your Honor.

After the State reexamined Harrison, appellant renewed his objection stating, “Same objection not based on his personal knowledge as to the location where it was found.” The trial court then admitted the evidence as a business-record exception to the hearsay rule.

In light of the record, we agree with the State that appellant’s objection on the basis of Rule 803 is now argued for the first time on appeal and not preserved for appellate review. In fact, the record reveals no objection by appellant that the exhibit was inadmissible as a business record or as an “investigative report by police or other law enforcement personnel.” It is well-settled that parties are bound on appeal by the scope and nature of the objections and arguments they presented at trial. Hill v. State, 341 Ark. 211, 216, 16 S.W.3d 539, 542 (2000); Davis v. State, 330 Ark. 501, 956 S.W.2d 163 (1997) (citing Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). Accordingly, we cannot say that the trial court abused its discretion by admitting the exhibit pursuant to Ark. R. Evid. 803(6).

III. Rule 4-3 (h)

In accordance-with Ark. Sup. Ct. R. 4-3 (h) (2000), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal. We address the merits of one such ruling regarding appellant’s attempt to have the trial court instruct the jury on possession as a lesser-included offense of manufacturing methamphetamine. The trial court refused to give the instruction on the basis that possession was not a lesser-included offense of manufacturing.

We have acknowledged that it is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by the slightest evidence. Fudge v. State, 341 Ark. 759, 767, 20 S.W.3d 315, 319 (2000) (citing Spann v. State, 328 Ark. 509, 513, 944 S.W.2d 537 (1997)). However, the trial court may refuse to offer a jury instruction on an included offense when there is no rational basis for a verdict acquitting the defendant of the charged offense and convicting him of the included offense. See Ark. Code Ann. section 5-l-110(c) (Repl. 1997). Moreover, it is not error for the trial court to decline to give the proffered instruction on the lesser offense when the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Fudge, 341 Ark. at 767, 20 S.W.3d at 319 (citing Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995)).

Here, appellant’s defense was that he was entirely innocent of the charged offense, manufacturing methamphetamine. Significantly, where a defendant claims that he is entirely innocent, no rational basis exists to instruct the jury on a lesser-included offense because the jury need only determine whether the defendant is guilty of the crime charged. See Brown v. State, 321 Ark. 413, 415-16, 903 S.W.2d 160, 162 (1995). Given our holding regarding the sufficiency of the evidence, appellant was clearly guilty of the greater offense charged and no rational basis existed to instruct the jury on possession.

In light of appellant’s defense of innocence and the evidence that he was driving a car with unprocessed methamphetamine, in oil form, we cannot say that the trial court had a rational basis to instruct the jury on possession. Accordingly, we find no prejudicial error in the trial court’s refusal to instruct the jury on possession, and we find no other reversible errors in the record. We affirm the trial court and appellant’s judgment of conviction.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    CITY OF CAVE SPRINGS, Arkansas, and the Cave Springs Planning Commission v. CITY OF ROGERS, Arkansas, the Reaves Family Limited Partnership, Wayne Simpson and Pat Simpson, Trustees of the Simpson Family Revocable Trust, and Mark Pryor, Attorney General for the State of Arkansas
    00-669
    37 S.W.3d 607
    Supreme Court of Arkansas
    Opinion delivered February 15, 2001

      Jim D. Johnson, P.A., by: Jim Johnson, for appellant.

      Jim Clark and Ben Lipscomb, Office of Rogers City Attorney, and Watkins & Scott,. P.L.L.C., by: William P. Watkins, for appellees.
   Donald L. Corbin, Justice.

Appellants City of Cave Springs and the Cave Springs Planning Commission filed an action for declaratory judgment in the Benton County Circuit Court seeking a determination that Act 779 of 1999 is unconstitutional. Act 779 (“An Act to Assist Landowners to Obtain Municipal Services; and for Other Purposes”) was enacted by the Arkansas General Assembly on March 22, 1999. The Act provides that “[a] landowner or group of landowners seeking additional municipal services may have their land detached from the municipality in which it is located and annexed into another municipality that borders the land” in order to obtain the services. The Act only allows annexation after the municipality in which the land is located has first had the opportunity to provide the requested services. The trial court dismissed Appellants’ action, and Appellants now allege four points of error on appeal, none of which have merit. As this appeal involves an issue of statutory construction, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(6). We affirm.

The facts leading up to the present dispute are as follows. Appellees, The Reaves Family Limited Partnership and Wayne Simpson and Pat Simpson, Trustees of the Simpson Family Revocable Trust, are the owners of agricultural land that was annexed by the city of Cave Springs on July 20, 1992. On August 4, 1999, Appellees mailed a letter to the mayor of Cave Springs requesting a “commitment, in writing, within 30 days, that the City of Cave Springs will take substantial steps within 90 calendar days after receipt of this statement toward making the requested services [municipal water and sewer service] available to the subject property.” The city attorney responded, by letter on August 21, 1999, that considering the fact that the property was zoned agricultural, the city could not provide the services requested. Following Cave Springs’s refusal to provide the requested services, the landowners filed a petition for annexation and notice before the city council of Rogers, pursuant to Act 779. Cave Springs filed a notice of objection to the landowners’ petition for annexation, but the city of Rogers passed an ordinance accepting and annexing the property, zoning it agricultural.

On October 20, 1999, Appellants filed a petition for declaratory judgment, naming the landowners, the City of Rogers, and Mark Pryor, Arkansas Attorney General, as defendants. Appellants asserted the following allegations: (1) the landowners failed to properly file a statement with the municipality as required under Act 779; (2) the Rogers ordinance contains an emergency clause that does not state facts constituting an emergency, and thus is invalid; (3) Act 779 is unconstitutionally vague; (4) Act 779 violates procedural due-process rights; (5) Act 779 is an unconstitutional delegation of legislative authority; and (6) Act 779 is unconstitutional because it operates retroactively. Appellees, in turn, filed a motion to dismiss under Ark. R. Civ. P. 12(b)(6). The trial court conducted a hearing, and ultimately granted Appellees’ motion to dismiss. This appeal follows.

I. Vagueness & Due Process

For their first point on appeal, Appellants argue that the trial court erred in finding that Act 779 is not unconstitutionally vague and does not violate procedural due-process rights. Appellants allege that Act 779 impairs the fundamental rights of a municipality, and that they may be considered “persons” for purposes of challenging Act 779 on due-process grounds. We reject this argument, as it is premised on Appellants’ erroneous notion that a municipality, such as Cave Springs, is afforded such constitutional protections.

The United States Supreme Court has ruled that a city cannot invoke the protection of the Fourteenth Amendment against the state. See City of Newark v. State of New Jersey, 262 U.S. 192 (1923). Similarly, this court has held that a political subdivision of the state cannot invoke the protection of the Fourteenth Amendment against the state itself. Arkansas State Hosp. v. Goslee, 274 Ark. 168, 623 S.W.2d 513 (1981). Furthermore, in Stilley v. Henson, 342 Ark. 346, 355, 28 S.W.3d 274, 279 (2000), this court recognized the limited powers bestowed on municipal corporations:

Municipal corporations are creatures of the legislature and as such have only the power bestowed upon them by statute or the Arkansas Constitution. Jones v. American Home Life Ins. Co., 293 Ark. 330, 738 S.W.2d 387 (1987). It is well settled that municipal corporations have no inherent powers and can exercise only (1) those expressly given to them by state statute or the Arkansas Constitution, (2) those necessarily implied for the purposes of, or incident to, the express powers, and (3) those indispensable, not merely convenient, to their objects and purposes. Cosgrove v. City of West Memphis, 327 Ark. 324, 938 S.W.2d 827 (1997). Finally, any substantial doubt about the existence of a power in a municipal corporation must be resolved against it. Id.; City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982); Town of Dyess v. Williams, 247 Ark. 155, 444 S.W.2d 701 (1969).

Clearly, under Arkansas law, Cave Springs is a municipal corporation. As far back as 1878, this court has held that counties, cities, and towns, are municipal corporations. See Roberts v. Watts, 263 Ark. 822, 568 S.W.2d 1 (1978); Eagle v. Beard, 33 Ark. 497 (1878). This holding was reiterated in City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W.2d 930 (1949). As a municipal corporation, Cave Springs is a creature of the legislature, not a person, and may not assert the Fourteenth Amendment protections against the State. Accordingly, we need not address Appellants’ argument that Act 779 is unconstitutionally vague under procedural due-process standards.

Even though Appellants are not “persons” for purposes of the Due Process Clause of the Fourteenth Amendment, the trial court was correct in ruling that they have standing to challenge the constitutionality of Act 779. Arkansas’s law on declaratory judgments provides that a municipal corporation may be a person for purposes of obtaining declaratory relief. See Ark. Code Ann. § 16-111-101 (1987). Arkansas Code Annotated § 16-111-104 (1987) further provides:

Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Clearly, Cave Springs’s rights are affected by Act 779. Land that was once a part of its borders has now been annexed by a neighboring city, pursuant to the Act. Thus, Appellants’ standing is not derived from the Fourteenth Amendment, but from section 16-111-104.

II. Delegation of Legislative Authority

For their next argument, Appellants assert that the trial court erred in finding that Act 779 is not an unconstitutional delegation of legislative authority. Specifically, Appellants contend that the Act impermissibly delegates the job of defining the law to landowners and annexing municipalities, thereby creating a danger of arbitrary and discriminatory application. Appellants further argue that Act 779 fails to provide any procedural safeguards in the form of judicial review. In reviewing the constitutionality of an act, we recognize that every act carries a strong presumption of constitutionality. State of Washington v. Thompson, 339 Ark. 417, 6 S.W.3d 82 (1999); City of N. Little Rock v. Pulaski County, 332 Ark. 578, 968 S.W.2d 582 (1998). The burden of proof is on the party challenging the legislation to prove its unconstitutionality, and all doubts will be resolved in favor of the statute’s constitutionality, if it is possible to do so. Foster v. Jefferson County Bd. of Election Comm’rs, 328 Ark. 223, 944 S.W.2d 93 (1997). An act will be struck down only when there is a clear incompatibility between the act and the constitution. Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 966 S.W.2d 241 (1998).

This court has long recognized the rule that while the legislature may not delegate its power to make laws, it can make a law and prescribe the conditions upon which it may become operative. Leathers v. Gulf Rice Ark., Inc., 338 Ark. 425, 994 S.W.2d 481 (1999); Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). In the instant matter, the trial court found that there was no unconstitutional delegation of legislative authority because the Act simply provides a property owner with a mechanism for obtaining services when the municipality it is in is unable to provide those services. We agree.

In Little Rock v. North Little Rock, 72 Ark. 195, 79 S.W. 785 (1904), this court recognized that the legislature has wide discretion over matters involving the changing of boundaries between towns. This court further stated that the power of the legislature to pass a statute affecting boundaries may not be questioned unless it has been limited by a constitutional provision. Act 779 specifically sets forth certain conditions that must be met before a landowner can attempt to petition another city for annexation. Those conditions include the requirements of providing notice and an opportunity for the city where the land is located to provide the requested services. Moreover, the Act requires that the annexing city must commit to making the services available. The requirements enumerated in Act 779 will prohibit any arbitrary or discriminatory application of its provisions.

As to the issue of judicial review, it is true that in Cantrell v. Vaughn, 228 Ark. 202, 306 S.W.2d 863 (1957), this court held that both landowners and the city needed the protection afforded by the exercise of judicial review in matters of annexation. The situation here is distinguishable, however. As previously noted, Act 779 contains procedural safeguards that will prevent arbitrary or discriminatory application of its provisions. Furthermore, there is ample opportunity for judicial review of an annexation filed pursuant to this Act. A municipal corporation, or even a landowner, may seek a declaration of rights under the Declaratory Judgment Act, codified at Ark. Code Ann. § 16-111-101-111 (1987), thus allowing for judicial review of any action taken pursuant to Act 779. Accordingly, Appellants’ argument on this point is without merit.

III. Retroactive Operation

Next, Appellants argue that Act 779 is unconstitutional because it operates retroactively. Appellants assert that Act 779 could impair a city’s rights on bond issues, and that when a statute impairs a city’s rights in property, that statute may not be applied retroactively. Specifically, Appellants argue that this law goes back and affects their tax base as far as their ability to meet municipal debt.

The general rule is that all legislation is presumed to apply prospectively unless the legislature expressly declares, or necessarily implies by the language used, an intent to give a statute retroactive effect. Woodhaven Homes, Inc. v. Kennedy Sheet Metal Co., 304 Ark. 415, 803 S.W.2d 508 (1991); Arkansas Rural Med. Pract. Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). A statute will not be given a retroactive application when it takes away a vested right unless such is the “unequivocal and inflexible import of the terms and the manifest intention of the legislature.” Id. at 262, 729 S.W.2d at 403 (quoting United States v. Security Indus. Bank, 459 U.S. 70 (1982)).

Here, there is nothing explicit or implicit in the language of Act 779 to indicate that it is to apply retroactively. This Act simply creates a mechanism by which landowners may obtain basic municipal services. Again, Appellants attempt to support their argument on this point by asserting some type of fundamental right in property owned by private landowners. It is true that the city has an interest in maintaining their borders, but as previously pointed out, this right is also subject to legislative control. This court previously rejected an argument that one city’s annexation of land located in a contiguous city amounted to a taking without due process of law and just compensation. See Little Rock, 72 Ark. 195, 79 S.W. 785. There, this court recognized that a statute allowing annexation did not deal with property interests, but rather with the territory of cities and towns that, under certain circumstances, may be annexed to other corporations of that kind. Thus, we reject Appellants’ argument that this Act provides for an unconstitutional retroactive application.

IV Proper Filing of Notice

Finally, Appellants argue that the trial court erred in finding that the landowners properly filed a statement with the municipality as required under Act 779. Appellants assert that the landowners’ failure to file documents with the Cave Springs Planning Commission is fatal. This argument is without merit. Nowhere in Act 779 is a landowner required to file a statement with the municipality’s planning commission. The landowners served their notice on the mayor of Cave Springs. The mayor of a city is the principal officer of that municipal corporation and possesses the chief executive power of that city. See Ark. Code Ann. § 14-42-102 (Repl. 1998). Thus, we cannot say it was unreasonable to serve notice on the mayor of Cave Springs.

Moreover, Appellants assertion that the notice should have gone to the planning commission because the planning commission must review any projects or proposals related to utility lines is meritless. The purpose of requiring notice is to give the municipality where the land is located an opportunity to provide services. Once the city has agreed to take the steps to provide those services, any necessary plans may then be submitted to the planning commission. It is unreasonable, however, to require that such plans be submitted from the outset when it is unknown whether the city is even capable of providing the services. Accordingly, the landowners’ notice to the mayor satisfied the notice requirement of Act 779.

Based on the foregoing, we cannot say the trial court erred in dismissing Appellants’ claim.

Affirmed.


author: ANNABELLE Clinton Imber, Justice.

text:
    STATE of Arkansas v. Roger LESTER
    CR 00-762
    38 S.W.3d 313
    Supreme Court of Arkansas
    Opinion delivered February 15, 2001

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellant.

      Otto R. Fry, for appellee.
   ANNABELLE Clinton Imber, Justice.

The State appeals an order of the Pope County Circuit Court declaring Act 1515 of 1999, codified as Arkansas Code Annotated section 16-81-114 (Supp. 1999), unconstitutional and suppressing evidence seized following the warrantless arrest of Mr. Roger Lester. We reverse and remand.

On November 23, 1999, the Clarksville Police Department advised the Russellville Police Department to be on the lookout (BOLO) for a blue Plymouth Horizon, Arkansas license plate number 677 AMD, that had been identified in connection with a recent “gas drive-off’ incident at a Clarksville service-station; that is, the driver of the vehicle had allegedly driven off without paying for gasoline pumped into the vehicle. At approximately mile 82 of I-40, inside the city limits of Russellville, Patrolman Michael Hemmer of the Russellville Police Department initiated a traffic stop of a vehicle matching the description broadcast by Clarksville. The vehicle was being driven by the appellee, Mr. Roger Lester. He was accompanied by his wife. Patrolman Hemmer notified the Clarksville Police Department that he had just stopped a vehicle matching the description in the BOLO message. He then detained the occupants of the vehicle for twenty to thirty minutes until Sergeant Paul Harmon of the Clarksville Police Department arrived at the scene.

Sgt. Harmon placed Mr. Lester under arrest for theft of services. The two officers then conducted a pat-down search of Mr. Lester. During that search, Patrolman Hemmer discovered a pipe of the kind typically used for smoking marijuana in Mr. Lester’s left pants pocket. Sgt. Harmon also discovered a baggy in Mr! Lester’s right pocket. The baggy contained a small amount of a greenish-brown leafy substance that appeared to be marijuana. When Patrolman Hemmer asked if there was more marijuana in the vehicle, Mr. Lester directed the officers to a cigarette pack inside the vehicle. The officers then proceeded to search the vehicle and found what appeared to be four fresh hand-rolled marijuana cigarettes and two that had already been partially burned.

Mr. Lester was charged with the crime of possession of a controlled substance, second offense, pursuant to Arkansas Code Annotated section 5-64-401 (a) and (c) (Supp. 1999). He filed a motion to suppress the evidence seized upon his arrest and asserted that the arrest was in violation of the Fourth and Fourteenth Amendments to the United States Constitution and the Arkansas Rules of Criminal Procedure. Specifically, with regard to the initial stop and detention by Patrolman Hemmer of the Russellville Police Department, Mr. Lester argued that (1) the Russellville officer had no authority to initiate a traffic stop because it was merely a pretext for an investigative stop; (2) no traffic citation ever issued; (3) the Russellville officer did not witness any misdemeanor offense and had no reason to suspect Mr. Lester had committed a felony; and (4) the Russellville officer violated Arkansas Rule of Criminal Procedure 3.1 by detaining him for a period in excess of fifteen minutes.

Mr. Lester also argued that Sgt. Harmon of the Clarksville Police Department had no authority to arrest him because (1) Rule 4.1 of the Arkansas Rules of Criminal Procedure does not authorize a warrantless arrest for an alleged theft of services misdemeanor offense, and (2) Sgt. Harmon illegally arrested him without authority outside of the Clarksville Police Department’s jurisdiction. In response, the State produced a copy of an internal memo from the Clarksville Police Department authorizing its officers to make arrests statewide. The State argued that this memo provided Sgt. Harmon with authority to arrest Mr. Lester anywhere within the State for an offense that occurred in Clarksville. The State also argued that Act 1515 of 1999, codified at Ark. Code Ann. § 16-81-114 (Supp. 1999), expressly authorized a misdemeanor warrantless arrest for gas drive-offs.

Both Patrolman Hemmer and Sgt. Harmon testified at a suppression hearing conducted on March 27, 2000. According to their testimony at the hearing, the following facts are undisputed:

• Mr. Lester had been detained in Russellville by Patrolman Hemmer;
• Mr. Lester had committed no traffic offense that led to his stop;
• Mr. Lester was detained solely because of the BOLO message broadcast by the Clarksville Police Department in response to the alleged gas drive-off;
• Mr. Lester was detained for twenty to thirty minutes before Sgt. Harmon arrived and placed him under arrest for theft of services;
• no officer had witnessed the alleged gas drive-off; and
• no warrant was sought for Mr. Lester’s arrest.

In an order entered on April 28, 2000, the trial court, upon its own motion, declared Act 1515 to be in violation of the Arkansas Constitution, finding that it is an improper encroachment by the General Assembly upon the powers reserved to the judiciary. Based on that determination, the trial court held that the Russellville Police Department had no authority to stop and detain Mr. Lester and that Ark. R. Crim. P. 4.1 provided no authority for the arrest. Absent authority for the Russellville Police Department to arrest Mr. Lester, the trial court found that the officers had no authority to conduct a pat down or search. Consequently, the trial court suppressed the evidence seized as a result of the pat down and search. The State now appeals this interlocutory order. We have jurisdiction pursuant to Rule 3(a) of the Arkansas Rules of Appellate Procedure — Criminal.

The State’s principal point on appeal is that the trial court erred in declaring Act 1515 unconstitutional. We agree.

Act 1515 of 1999, codified as Ark. Code Ann. § 16 — 81— 114 (Supp. 1999), provides that:

(a) Any person who pumps fuel into a vehicle or container, which fuel is the property of a retail business entity that engages in the sale of fuel, and then leaves the premises with the fuel and without paying for the fuel shall be subject to arrest during the four (4) hours following the event, notwithstanding the lack of a warrant for the arrest.
(b) Provided, however, the person arrested shall be released within twenty-four (24) hours of the arrest unless a warrant for the arrest of the person is issued according to law.

The trial court held this statute to be an unconstitutional violation of the separation of powers, finding that the General Assembly had improperly encroached upon the powers reserved to the judiciary under the Arkansas Constitution. Statutes are presumed to be constitutional, and the burden of proving otherwise is on the party challenging the statute. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). We resolve all doubts in favor of constitutionality. Id.

The Arkansas Constitution divides the government of the State into three separate “departments”: legislative, executive, and judicial. Ark. Const, art. 4, § 1. “No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ark. Const, art. 4, § 2. Legislative invasion into the province of the judicial branch is an unconstitutional violation of the separation of powers. Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987) (holding that statute prohibiting courts from appointing certain attorneys in criminal cases violated separation of powers by encroaching on judiciary’s authority to regulate the practice of attorneys).

The Arkansas Constitution confers upon the courts the inherent authority to promulgate rules of procedure. Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977). However, Article 7, sections 1 and 4, “do-not expressly or by implication confer on this Court exclusive authority to set rules of court Procedure.” Jackson v. Ozment, 283 Ark. 100, 101, 671 S.W.2d 736, 738 (1984) overruled on other grounds by Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). The court shares this authority with the General Assembly. St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). Thus, it is not a violation of separation-of-powers principles for the legislature to enact statutes pertaining to rules of procedure, St. Clair v. State, supra, although such statutes may be superseded by the rules promulgated by the judiciary. See Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994); Weidrick v. Arnold, supra.

Rule 4.1 of the Arkansas Rules of Criminal Procedure provides in relevant part that:

(a) A law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed
(i) a felony;
(ii) a traffic offense involving:
(A) death or physical injury to a person; or
(B) damage to property; or
(C) driving a vehicle while under the influence of any intoxicating liquor or drug;
(iii) any violation of law in the officer’s presence;
(iv) acts which constitute a crime under the laws of this state and which constitute domestic abuse as defined by law against a family or household member and which occurred within four (4) hours preceding the arrest.

The warrantless arrest of an individual for the misdemeanor offense of theft of services, as is at issue in this case, is clearly not encompassed within the provisions of Rule 4.1 unless the offense occurred in the presence of an officer. It is undisputed that no officer witnessed the alleged theft by Mr. Lester. Therefore, if Act 1515 is superseded by Rule 4.1, the arrest was invalid.

In Casement v. State, supra, we reviewed the general state of the law on the subject of conflicts that may arise between laws enacted by the legislature and the rules of criminal procedure promulgated by this court:

The Arkansas Rules of Criminal Procedure were adopted by this court by per curiam order entered December 22, 1975, to be effective on January 1, 1976, pursuant to Act 470 of 1971, and in harmony with this court’s superintending control over the trial courts under our state Constitution. Matthews v. State, 268 Ark. 484, 598 S.W.2d 58 (1980). That act specifically authorized this court to prescribe rules of practice and procedure with respect to all criminal case proceedings, and provided further that all laws in conflict with such rules are of no further effect after such rules have taken effect. Section 4, Act 470 of 1971.
We have recognized that, in the interests of promoting important public policies and state interests, the legislature will enact laws which will occasionally conflict with the rules of this court. State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). In that event, we have declared that, to protect against the total abrogation of the rules of procedure vital to the interests and policies of the judicial process, “we will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule’s primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.” Id. at 7, 800 S.W.2d at 404; Hickson v. State, 316 Ark. 783, 785, 875 S.W.2d 492, 493 (1994) (’’Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved with our rules remaining supreme.”)

Casement v. State, 318 Ark. at 229-30, 884 S.W.2d at 595.

Regardless of whether the authority conferred by Act 1515 is in conflict with Rule 4.1, we cannot say in this instance that Act 1515 is superseded. The public policy of the State of Arkansas is declared by the General Assembly, not its courts. Miller v. State, 338 Ark. 445, 994 S.W.2d 476 (1999); McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999); Ross, Disbursing Agent v. Rich, 210 Ark. 74, 194 S.W.2d 297 (1946); Cole, Jones and Bean v. State, 210 Ark. 433, 196 S.W.2d 582 (1946). Where the policy declared by the General Assembly may be effectuated without compromising the primary purpose and effectiveness of the Rules of Criminal Procedure, we must do so. See Casement v. State, supra; State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990).

The Fourth Amendment to the United States Constitution prohibits arrest without probable cause. “To implement the Fourth Amendment’s protection against unfounded invasions of liberty and privacy, the [Supreme] Court has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible.” Gerstein v. Pugh, 420 U.S. 103, 112 (1975). This determination does not necessarily have to be made prior to arrest unless the arrest is made in the home, in which case a warrantless arrest is prohibited by the Fourth Amendment absent probable cause and exigent circumstances. County of Riverside v. McLaughlin, 500 U.S. 44 (1991); Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999) (citing Payton v. New York, 445 U.S. 573 (1980)). Although the Supreme Court has “expressed a preference for the use of arrest warrants when feasible, ... it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant” before arresting an individual in a public place. Gerstein v. Pugh, 420 U.S. at 113. It is left to the individual states to “integrate prompt probable cause determinations into their differing systems of pretrial procedures.” County of Riverside v. McLaughlin, 500 U.S. at 53. There is no single preferred approach. Id.

The common law distinguished between felony and misdemeanors in the authority to make a warrantless arrest. 3 LaFave, Search and Seizure § 5.1 (1996). At common law, officers had the authority to arrest any individual without a warrant if the officer had reasonable grounds to believe the individual had committed a felony. Id. However, a warrantless arrest for a misdemeanor was authorized only if it occurred in the presence of the officer. Id. The General Assembly retained this distinction, albeit with one modification, when it codified the criminal law in Arkansas. See Ark. Code Ann. § 16-81-106(b)(2) (1987 & Supp. 1999). As codified, a law enforcement officer was authorized to arrest an individual without a warrant if the officer had reasonable grounds to believe the individual was guilty of a felony. Id. However, a warrant was necessary to arrest an individual for a misdemeanor unless it occurred in the officer’s presence or the officer had probable cause to believe that the person had committed battery upon another person, for which there was evidence of bodily harm, and the officer reasonably believed there existed a danger of violence if the suspect was not arrested without delay. Id.

In 1976, this court adopted the Arkansas Rules of Criminal Procedure. In Re Arkansas Criminal Code Revision Comm’n, 259 Ark. 863, 530 S.W.2d 672 (1975). Rule 4.1 of the newly adopted rules was largely a restatement of the existing statutory law concerning warrantless arrests. See Commentary to Ark. R. Crim. P. art. III.; Ark. Code Ann. § 16-81-106(b)(2) (1987 & Supp. 1999). Rule 4.1 followed the tradition of distinguishing between felonies and misdemeanors by authorizing warrantless arrests for misdemeanors only if they occurred in the officer’s presence or consisted of a traffic offense involving death or injury to a person, damage to property, or driving of a vehicle while under the influence of any intoxicating liquor or drug. Ark. R. Crim. P. 4.1 (a) (i)- (iii).

Following the adoption of our Rules, the General Assembly again addressed the issue of warrantless arrests in the Domestic Abuse Act of 1991, wherein the General Assembly extended the authority to arrest without a warrant to incidents of domestic abuse that occurred within four hours of arrest. Ark. Code Ann. § 16-81-113 (Supp. 1999). We followed suit and adopted amended Rule 4.1 that included a new subsection authorizing warrantless arrests in cases where the officer has reasonable cause to believe the individual has committed the crime of domestic abuse within four hours of arrest. Ark. R. Crim. P. 4.1(a)(iv); In re Ark. Rule 4.1 of A.R.Cr.P., 318 Ark. Appx. 893, 887 S.W.2d 514 (1994).

The General Assembly, in Act 1515 of 1999, has again acted to extend the authority of law enforcement officers to make an arrest without a warrant for a misdemeanor offense. It has declared the policy of the State of Arkansas to be that a probable cause determination by a neutral detached magistrate may be made following arrest, if a suspect is arrested within four hours of the alleged gas drive-off. Ark. Code Ann. § 16-81-114. Furthermore, the person arrested must be released within twenty-four hours of the arrest “unless a warrant for the arrest of the person is issued according to law.” Id. The public policy expressed by the General Assembly in Act 1515 does not compromise the underlying purpose and effectiveness of Rule 4.1. As previously stated, this court has amended Rule 4.1 in the past to embody recent legislation. Nor does Act 1515 compromise established Fourth Amendment principles. The Supreme Court has never held that a warrantless arrest for a misdemeanor is prohibited by the Fourth Amendment. See Maryland v. Macon, 472 U.S. 463 (1985). It merely requires a prompt determination of probable cause. County of Riverside v. McLaughlin, supra. Absent a substantive declaration of law pursuant to the Fourth Amendment, it is a matter of public policy, upon which the General Assembly is free to speak, whether a determination of probable cause by a neutral and detached magistrate must be made before or after an arrest in a public place.

For these reasons, we hold that Act 1515 of 1999 is not superseded by Arkansas Rule of Criminal Procedure 4.1. We further hold that the trial court erred in finding that Act 1515 is an unconstitutional violation of the separation of powers.

Mr. Lester argues two alternative bases for upholding the trial court’s order of suppression. First, he argues that his initial detention by- the Russellville Police Department was in excess of fifteen minutes, and therefore in violation of Rule 3.1 of the Arkansas Rules of Criminal Procedure. Second, he argues that he was illegally arrested by the Clarksville Police Department outside the jurisdiction of Clarksville. These arguments, however, are premature as the trial court has not yet. ruled on these issues. See State v. Jones, 338 Ark. 781, 3 S.W.3d 675 (1999). We are, therefore, unable to address the merits of these alternative arguments for suppression.

Reversed and remanded.

       The traffic offense provision, which is restricted to specific circumstances involving bodily harm, property damage, or driving a vehicle while intoxicated, was recommended by the Arkansas Criminal Code Revision Commission in an amendment to its original petition for the promulgation of rules of criminal procedure. In re Ark. Crim. Code Revision Comm’n, 259 Ark. at 867, 530 S.W.2d at 675.

       Rule 4.1 was also amended in 1994 to add a new subsection (e) as follows:
      A person arrested without a warrant shall not be held in custody unless a judicial officer determines, from affidavit, recorded testimony, or other information, that there is reasonable cause to believe that the person has committed an offense. Such reasonable cause determination shall be made promptly, but in no event longer than forty-eight (48) hours from the time of arrest, unless the prosecuting attorney demonstrates that a bona fide emergency or other extraordinary circumstance justifies a delay longer than forty-eight (48) hours. Such reasonable cause determination may be made at the first appearance of the arrested person pursuant to Rule 8.1.
      The commentary to Rule 4.1 states that this new subsection codified the United States Supreme Court’s rulings in Gerstein v. Pugh, supra, and County of Riverside v. McLaughlin, supra.

        In re Ark. R. Crim. P., 317 Ark. 649 (1994).


author: RAY THORNTON, Justice.

text:
    Oscar STILLEY, Appellant/Intervenor v. George A. MAKRIS, Jr., Appellee/Petitioner, and Helen McClinton Bradley, in Her Official Capacity as County Clerk of Jefferson County, Arkansas, Appellee/Respondent

    00-1102
    38 S.W.3d 889
    Supreme Court of Arkansas
    Opinion delivered February 15, 2001
    [Petition for rehearing denied March 22, 2001.]

      Appellant/Intervenor, pro se.

      Bridges, Young, Matthews & Drake PLC, by: Jack A. McNulty; and Friday, Eldredge & Clark, by: Joe D. Bell and R. Christopher Lawson, for appellee.,
   RAY THORNTON, Justice.

This appeal concerns the validity of an initiative petition that was sponsored and filed by appellant, Oscar Stilley. This initiative petition proposed to require Jefferson County, Arkansas (“County”), to sell its county hospital, known as Jefferson Regional Medical Center (“JRMC”). The ballot title and petition clearly stated that Oscar Stilley, attorney at law, would conduct and administer the ,sale of the hospital in exchange for a commission fee of five percent of the gross receipts from the sale. The proposed initiative would also abate or suspend taxes levied by the County. Appellee, George A. Makris, Jr. (“Makris”), sought a writ of mandamus, challenging the legal validity of appellant’s initiative petition and seeking a temporary restraining order to prevent the county clerk from certifying the adequacy of the signatures on the petition. After appellant intervened, the trial court issued the order of mandamus and the temporary restraining order. We affirm both of the trial court’s rulings.

The County currently leases the hospital property to Jefferson Hospital Association, Inc. (“Association”), pursuant to a lease agreement that does not expire until the year 2029. The County has issued revenue bonds, secured by a mortgage lien on the hospital property and the rental payments made under the lease. This agreement is contained in the trust indenture contract between the County and Simmons First National Bank of Pine Bluff, Arkansas.

On August 7, 2000, appellant filed an initiative petition bearing the popular name of “AN INITIATED ORDINANCE TO PROVIDE FOR THE SALE OF JEFFERSON COUNTY REGIONAL CENTER, A HOSPITAL OWNED BY JEFFERSON COUNTY, ARKANSAS” with the Jefferson County clerk (“Clerk”) as an initiated ordinance, pursuant to Ark. Code Ann. § 14-14-914(c) (Repl. 1998) and Amendment 7 of the Arkansas Constitution. If adopted, the initiative petition would require that the County adopt an ordinance providing for the sale of JRMC to the highest bidder. The initiative also authorizes Mr. Stilley to provide all necessary advertisement, solicitation of bids, accounting and legal work necessary for the sale, and directs the payment of five percent of the gross selling price to Mr. Stilley. The petition further provides that, after Mr. Stilley’s five percent commission is paid, the remaining net proceeds would be split evenly in the following manner: fifty percent would go to the County Road Fund, and the remaining fifty percent would go the County General Fund, County Road Fund, and the County Library Fund in order to offset, for a time, the revenue lost by abating and suspending the County tax millages dedicated to the County General Fund, the County Road Fund, and the County Library Fund.

After appellant filed his initiative petition, the Clerk had ten days to evaluate its sufficiency by determining whether the petition had been signed by not less that fifteen percent of the qualified electors who voted in the last general election for the office of circuit clerk, pursuant to Ark. Code Ann. § 14-14-915(d) (Repl. 1998). Under Ark. Code Ann. § 14-14-914(b) and (c) (Repl. 1998), the initiative petition could not be placed on the ballot without a certification by the Clerk that it contained a sufficient number of signatures.

On August 10, 2000, Makris, a citizen, resident, taxpayer, and registered voter in the County, filed a Petition for Writ of Mandamus challenging the legal validity of the initiative petition. Appellee Makris also filed a motion to expedite, requesting both a hearing within seven days, pursuant to Rule 78(d) of the Arkansas Rules of Civil Procedure, and a temporary order pursuant to Ark. Code Ann. § 16-115-108 (1987), restraining the Clerk from determining the sufficiency of the initiative petition pending a ruling from the Jefferson County Circuit Court on the petition’s validity.

On August 11, 2000, the Jefferson County Circuit Court entered the requested temporary restraining order and set a hearing for August 16, 2000. Mr. Stilley moved to intervene on the morning of August 16, 2000, and the trial court granted his motion. At the hearing, the court ruled that the initiative petition was invalid on its face and should not be certified for inclusion on the general-election ballot.

On August 28, 2000, the trial court entered its order of mandamus, permanently ordering the Clerk to refrain from certifying the sufficiency of the initiative petition. The court ruled that the petition, in requiring the sale ofJRMC under the direction of Mr. Stilley, violated the powers of the county judge and the county court with respect to the sale of county-owned property, contravened the statutory procedures for selling county property, and violated the duties of the county court to appropriate the proceeds from the sale of county property. The trial court further ruled that the proposed abatement or suspension of taxes violated Arkansas law governing the levy of property taxes by the county. Finally, the court ruled that the initiative petition constituted an impairment of contracts because it violated the covenants of the existing lease and impaired the security of its outstanding bonds.

Mr. Stilley brings his appeal from this ordér. He also joins appellee/respondent, Helen McClinton Bradley, in her official capacity as County Clerk of Jefferson County. Appellant relies upon two points for reversal: first, that the trial court erred in enjoining the certification of the petition signatures, and second, that the trial court erred in ruling that the initiative petition for the sale of the county hospital was legally invalid on its face. We affirm the trial court on both points.

I. Mootness

We first address the issue of mootness. It is obvious that the General Election of November 7, 2000, has come and gone. Clearly, the proposed initiative cannot be voted on at an election already held. We first consider whether the issues raised in this appeal are moot. We believe that they are not. Mr. Stilley asserts in his brief that there are three other expected appeals in county cases that are to be filed with this court. We consider this issue affecting ballot eligibility to be one of public importance that is likely to recur. Under such circumstances, we will address the issues on the merits. Allred v. McCloud, 343 Ark. 35, 31 S.W.3d 836 (2000); see also Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998).

II. Legal validity of the initiative petition

Mr. Stilley challenges the jurisdiction of the circuit court to review this pre-election challenge to the validity of the proposed ordinance. Arkansas Code Annotated § 16-115-102 (1987), provides that: “The circuit and chancery court shall have power to hear and determine petitions for the writ of mandamus and prohibition and to issue such writs to all inferior courts, tribunals, and officers in their respective jurisdictions.” Since the enactment of that statute in 1939, however, this court has held that the provision of the statute providing for chancery court jurisdiction over petitions for writs of mandamus violates the Arkansas Constitution. Nethercutt v. Pulaski County Special School Dist., 248 Ark. 143, 450 S.W.2d 777 (1970). “It follows, therefore, that jurisdiction of writs of mandamus being traditionally common law writs, is restricted to and vested solely in our circuit or law courts.” Id. Additionally, when the legal validity of an initiative petition is at issue, jurisdiction is in circuit court. Mertz v. States, 318 Ark. 390, 885 S.W.2d 853 (1994). Because the circuit court in this case determined the legal validity of appellant’s initiative petition, we hold that the circuit court’s jurisdiction was proper under Mertz, supra.

The next issue is whether the initiative petition is invalid on its face. Amendment 7 to the Arkansas Constitution provides that no initiated ordinance “shall be enacted contrary to the Constitution or any general law of the State.” Arkansas Code Annotated § 14-14-914(b) also provides:

No county legislative measure shall be enacted contrary to the Arkansas Constitution or any general state law which operates uniformly throughout the state, and any general law of the state shall have the effect of repealing any county ordinance which is in conflict therewith.

Id. Our well-established rule is that an initiated ordinance that is contrary to state law on its face should not be certified for inclusion on the ballot. Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000); see also Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996); Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984).

Arkansas Code Annotated § 14-16-105 (Repl. 1998) provides for the procedure of the sale of all real and personal property owned by the County. The statute provides:

(a) The county court of each county shall have power and jurisdiction to sell and cause to be conveyed any real estate or personal property belonging to the county and to appropriate the proceeds of the sale for the use of the county by proceeding in the manner set forth in this section.
(b) (1) Whenever the county judge of any county shall consider it advisable and to the best interest of the county to sell and convey any real or personal property belonging to the county, he shall cause an order to be entered in the county court setting forth:
(A) A description of the property to be sold;
(B) The reason for the sale; and
(C) An order directing the county assessor to cause the property to be appraised at its fair market value and to certify his appraisal thereof to the county court within a time to be specified in the order.
* * *
(d) If the appraised value of the property described in the order is less than the sum of five hundred dollars ($500), the property may thereafter be sold and conveyed by the county judge, either at public or private sale, for not less than three fourths (3/4) of the appraised value as shown by certificate of appraisal filed by the assessor.
* * *
(e)(1)(A) If the appraised value of the property to be sold exceeds the sum of five hundred dollars ($500), the county judge may sell the property to the highest and best bidder upon sealed bids received by the judge. The sheriff, the treasurer, and the circuit clerk of the county in which the property is to be sold shall constitute a board of approval for such sales, and the judge shall be the ex officio chairman of the board without a vote.
(3) The judge shall have the right to reject any and all bids received by him pursuant to the notice.
(4) (A) When a bid has been accepted for the property by the judge, he, as chairman of the approval board, shall immediately call a meeting of the board, and the proposals to sell at the acceptable bid shall be submitted to the board for its approval.
(B)(i) If a majority of the board approves the sale, then the judge may sell and convey the property to the highest bidderf.]

Id. The statute further provides that “[a]ny sale or conveyance of real or personal property belonging to any county not made pursuant to the terms of this section shall be null and void.” Id.; see also Maroney v. Universal Leasing Corp., 263 Ark. 8, 562 S.W.2d 77 (1978).

It is apparent that appellant’s initiative petition conflicts with the numerous statutory provisions for the sale of county property. First, appellant’s initiative petition provides for a method of selling JRMC that is contrary to this statutory provision. The petition would contravene the statutory authority and jurisdiction of the county court to sell county property under Ark. Code Ann. § 14-16-105(a). Secondly, the petition would deprive the county judge of his authority to determine whether it is in the best interest of the county to sell its property. Ark. Code Ann. § 14-16-105(b). Appellant argues that the quorum court has the power to sell the county hospital, but that power is limited. Under the provisions of Ark. Code Ann. § 14-16-105, the county judge has the authority to make this determination, subject to the approval of the county voters. See Ark. Code Ann. § 14-16-105(g). Finally, the petition would deprive other county officials of the authority to perform their statutory roles in the sale of county property. Appellant’s initiative petition eliminates the functions of the County, the county judge, and other county officials, and invests these responsibilities in Mr. Stilley, who is not a resident or landowner in the County.

Given the wording of his petition, Mr. Stilley is to receive five percent of the gross sale of JRMC and to perform all actions needed to carry out the sale. The express language of the petition gives Mr. Stilley the authority to conduct all aspects of the sale in contravention of the statutory authority of the assessor to appraise the property to be sold, the authority of the county judge to receive sealed bids and to reject any bids, and the authority of other elected officials to review and approve the county judge’s acceptance of a bid. Ark. Code Ann. §§ 14-16-105(b)-(e).

Arkansas Code Annotated § 14-16-105(g) provides that any county hospital “constructed or maintained in whole or in part by taxes approved by the voters shall not be sold unless the sale is approved by the majority of electors voting on the issue at a general or special election.” Id. This subsection does not repeal the provisions of the statute relating to the general procedures for selling county property, but adds an additional requirement for approval of the sale of a county hospital.

Additionally, the petition overturns the authority of the county court to appropriate the proceeds derived from the sale of county property. In appellant’s petition, the proceeds are to be divided equally between the county road fund and the county general fund and others. This appropriation preempts the exercise of the power of the county court to appropriate proceeds under Ark. Code Ann. § 14-16-105 (a) and Ark. Code Ann. § 14-16-105(d)(2)(a)..

Appellant’s petition also requires the abatement or suspension of property taxes collected by the County for the county general fund, the county road fund, and the county library fund in accordance with net proceeds from the sale of JRMC. We have said that the power of the county to levy property taxes is not inherent; that power comes from either the Arkansas Constitution or the General Assembly. Taggart & Taggart Seed Co., Inc. v. City of Augusta, 278 Ark. 570, 647 S.W.2d 458 (1983). Here, appellant’s proposed initiative would require a change in property tax using a procedure, wholly decided by Mr. Stilley, that is not authorized by the Arkansas Constitution. For example, Amendment 61 to the Arkansas Constitution authorizes quorum courts to “annually levy a county road tax not to exceed three (3) mills on the dollar on all taxable real and personal property within their respective counties.” Mr. Stilley’s initiative would violate provisions of the Arkansas Constitution, as well as the general laws adopted by our state legislature. The trial court’s ruling on this point is affirmed.

Mr. Stilley’s remaining argument is that the initiative petition would not impair the County’s existing contracts. In its order, the trial court stated that the “Initiative Petition is also contrary to existing contracts.” We have held that we would review a proposal’s validity if the measure is clearly contrary to the law. Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000). Here, the question is whether the proposed petition conflicts with Article 2, § 17, of the Arkansas Constitution and Article 1, § 10, of the United States Constitution, both of which prohibit the passage of any “law impairing the obligation of contracts.” Additionally, Ark. Code Ann. § 14-14-805(8) (Repl. 1998) prohibits the adoption of an ordinance that impairs the obligation of a contract executed by the county.

Appellant’s initiative petition requires the sale of JRMC to the highest bidder, but the land and facilities of JRMC are leased by the County to the Jefferson Hospital Association. JRMC, under the lease, must be operated by the Association until the year 2029, and all income derived from the property must be used exclusively for the costs of maintenance and operation. The lease agreement contains covenants that would be impaired by the sale. The covenants include the obligation by the Association to pay rent until the year 2029. Additionally, the County has covenanted that it will not terminate the lease except with the prior written approval of Simmons First National Bank. The Association has also covenanted in the lease that all property financed by the bonds will be owned by a state or local governmental unit.

Hospital revenue bonds, issued by the County, remain outstanding in the approximate principal amount of ten to twelve million dollars. These bonds are secured by an indenture contract between the County and Simmons First National Bank, as trustee for the bonds. The Association has guaranteed the principal and interest payments on the bonds in its guaranty agreement with Simmons First National Bank. The County has covenanted in the indenture contract that as long as the bonds are outstanding, it will not sell JRMC to any party who is not willing to assume all obligations of the County with respect to the bonds. Clearly, Mr. Stilley’s proposed initiative impairs the contractual obligations expressed in the lease agreements between the County and the Association and those contained in the trust indenture contract between the County and Simmons First National Bank. We hold that the trial court did not err in its finding on this point under Kurrus, supra.

III. Temporary restraining order

Appellant also presents the issue whether the trial court erred in enjoining the county clerk from certifying signatures by a temporary restraining order. On August 10, 2000, when Makris filed his petition for writ of mandamus, he also requested a temporary order pursuant to Ark. Code Ann. § 16-115-108 to restrain the county clerk from counting or certifying any signatures until the circuit court ruled on the validity of the petition. On August 11, 2000, the circuit court set a hearing and issued a temporary restraining order that restrained the clerk from “examining and ascertaining the sufficiency of the Initiative Petition.” Appellant now argues thát the trial court erred in enjoining the county clerk from counting petition signatures.

This argument is not preserved for appellate review because Mr. Stilley failed to raise the issue with the circuit court. See Ross Explorations, Inc. v. Freedom Energy, Inc., 340 Ark. 74, 8 S.W.3d 511 (2000). We have said repeatedly that we do not reach arguments made for the first time on appeal, and we do not reverse for error on matters that are not brought to the attention of the trial judge. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994). Because Mr. Stilley did not raise this argument at the trial level, we are precluded from addressing it now. For the foregoing reasons, we affirm.

Affirmed.

       We note that Ark. Code Ann. § 16-115-108 may be applicable to the question. The statute provides:
      During the pendency of any proceeding upon a petition for a writ of mandamus or prohibition, the court having jurisdiction . . . may make such temporary orders as appear expedient and proper to prevent injury, waste, or damage of whatsoever kind.

        Id.


author: JIM Hannah, Justice. ROBERT L. Brown, Justice,

text:
    STATE of Arkansas v. Beatrice DAWSON
    CR 00-935
    38 S.W.3d 319
    Supreme Court of Arkansas
    Opinion delivered February 15, 2001
    [Petition for rehearing denied March 22, 2001.]

      Mark Pryor, Att’y Gen., by: Valerie L. Kelly, Ass’t Att’y Gen., for appellant.

      Daniel D. Becker, for appellee.
   JIM Hannah, Justice.

The State of Arkansas appeals or, in the alternative, petitions for a writ of certiorari from Appellee Beatrice Dawson’s order of acquittal in a Saline County Circuit Court bench trial on third-degree assault charges. Dawson was convicted of the charge in Benton Municipal Court and appealed to Saline County Circuit Court from that finding.

Facts

The case was heard on May 25, 1999, by the Benton Municipal Court, and the court found Dawson guilty of third-degree assault and entered judgment that day. Dawson appealed this conviction to the Saline County Circuit Court on June 25, 1999, filing the notice of appeal and transcript that day. Trial was set on July 26, 1999, but neither Dawson nor her attorney appeared. The circuit court originally dismissed the case for “lack of prosecution” by Dawson, but then set this order aside on motion of Dawson who claimed that she and her attorney were not notified of the trial date.

The circuit court held a bench trial on January 10, 2000, and found Dawson “not guilty.” Judgment was entered on January 13, 2000, and an Order of Acquittal was entered on January 25, 2000. That same day, the State filed a Notice of Appeal pursuant to Rule 3(b) of the Arkansas Rules of Appellate Procedure — Criminal, contending that the trial court erred in considering collateral consequences of a conviction on Dawson’s employment record.

Almost two months later on March 23, 2000, the State filed a Motion to Vacate Judgment and Remand to Municipal Court on the basis that Dawson’s appeal from municipal court and request for trial de novo was not timely filed pursuant to Arkansas Inferior Court Rule 9(a), because it was filed on the thirty-first day after entry of the municipal court judgment. Dawson responded on April 24, 2000, arguing that the State’s motion to vacate was not timély filed and the circuit court lacked jurisdiction to grant the motion because the State had already filed a notice of appeal. A hearing was held on this motion on June 9, 2000. The trial court denied the State’s motion in a written order filed that day.

On June 13, 2000, the State filed a notice of appeal from the trial court’s denial of its motion to vacate, contending that the trial court erred in failing to vacate its acquittal order because the trial court had no subject-matter jurisdiction to try Dawson due to Dawson’s untimely appeal from municipal court.

I. Direct Appeal by the State

In this appeal, the State first argues that the issues satisfy the requirements under Rule 3(b) and (c) of the Arkansas Rules of Appellate Procedure — Criminal to allow this court to hear the State’s appeal. The State requests that this court allow it to make a collateral attack on void judgments of acquittal pursuant to Arkansas Rule of Civil Procedure 60(a), which this court would be applying for the first time to criminal proceedings. The State attempts to analogize this relief to a defendant’s ability to seek postjudgment relief in Rule 37 petitions and petitions for writ of habeas corpus, and argues that if the defendant is afforded such relief, the State should be also. The State argues that such a ruling would be important to the correct and uniform administration of the criminal law. Dawson responds that this appeal should not be considered because it turns on the specific facts of this case and, therefore, does not involve interpretation of the criminal rules with widespread ramifications. Furthermore, Dawson argues that State appeals are not allowed merely to show that the trial court erred.

Arkansas Rules of Appellate Procedure — Criminal 3(b) and (c) state:

(b) Where an appeal, other than an interlocutory appeal, is desired on behalf of the state following either a misdemeanor or felony prosecution, the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge.
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the fifing of the notice of appeal.

(Emphasis added.) Before addressing the merits of the State’s claim in this case, the court must first decide whether this issue is properly before us under Rule 3(c). State v. Thompson, 343 Ark. 135, 34 S.W.3d 33 (2000); State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997). Specifically, the court must decide whether the correct and uniform administration of justice requires us to review this point. This court’s review of the State’s appeals is not limited to cases that would establish precedent. Thompson; State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916). Where the resolution of the issue on appeal turns on the facts unique to the case, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000); State v. Guthrie, 341 Ark. 624, 19 S.W.3d 10 (2000); State v. Howard, 341 Ark. 640, 19 S.W.3d 4 (2000).

In reviewing the State’s basis for a direct appeal, it is clear that the State is requesting that this court allow it to collaterally attack judgments in criminal cases based on Ark. R. Civ. P. 60. Rule 60(a) and (b) state:

(a) Ninety-Day Limitation. To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
(b) Exception; Clerical Errors. Notwithstanding subdivision (a) of this rule, the court may at any time, with prior notice to all parties, correct clerical mistakes in judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

This rule was revised by per curiam Order oh January 27, 2000, in response to case law. The commentary to the rule notes that as amended, subdivision (a) is a slightly modified version of the prior subdivision (b). Subdivision (a) states the general rule that the court may, with prior notice to all parties, modify a judgment, decree or order within ninety days of its filing with the clerk to “correct errors or mistakes or to prevent the miscarriage of justice.” The revised subdivision (b) now expressly states an exception from the ninety-day limit for “clerical mistakes” and errors “arising from oversight or omission,” which may be corrected at any time with prior notice to the parties.

The amendment is consistent with Lord v. Mazzanati, 339 Ark. 25, 2 S.W.3d 76 (1999) (decision prior to modification which streamlined Rule 60(a) and (b)) wherein this court stated:

Rule 60(a) is merely a restatement of Arkansas’s well-settled law, empowering the trial court to enter nunc pro tunc judgments to cause the record to speak the truth, whether in criminal or civil cases. See Lovett v. State, 267 Ark. 912, 591 S.W.2d 683 (1980); McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933); Richardson v. State, 169 Ark. 167, 273 S.W. 367 (1925). Just recently we upheld a trial court’s authority to enter an order nunc pro tunc in a criminal case when more than a year and a half had passed since the original judgment had been filed and mandate had issued. McCuen v. State, 338 Ark. 631, 999 S.W.2d682 (1999). While we noted in McCuen that Rule 60(a) itself does not specifically refer or apply to a criminal case, it is obvious that Rule 60(a) does apply to civil cases, and its plain language adopts the same longstanding rule utilized in all cases — that trial courts may correct clerical errors at any time. In these circumstances, a trial court’s power to correct mistakes or errors is to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. [Citations omitted.]

Lord, 339 Ark. at 28-29. However, as the court noted in Lord, it has specifically found that prior Rule 60(a) does not apply in a criminal case. See McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999) (court denies use of prior Rule 60(a) in criminal cases or to correct errors in a criminal judgment to make it “speak the truth”); see also, Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000) (court denies use of current Rule 60 in criminal cases or to allow reconsideration of a circuit court’s order remanding a case to municipal court after petitioner failed to appear in circuit court).

Regardless of whether the current Rule 60(a) or (b) has been or ever could be applied to criminal cases, the theory behind the rule has been applied to criminal cases. See, e.g, McCuen; Lovett v. State, 267 Ark. 912, 591 S.W.2d 683 (Ark. App. 1979); McPherson v. State, 187 Ark. 872, 63 S.W.2d 282 (1933); Richardson v. State, 169 Ark. 167, 273 S.W. 367 (1925). However, relief under the current Rule 60(a) may only be granted within the ninety days, and the court’s power to modify expires after the passage of the ninetieth day. See Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988); City of Little Rock v. Ragan, 297 Ark. 525, 763 S.W.2d 87 (1989) .

Exceptions to the ninety-day time limit are noted in Rule 60(b) and Rule 60(c). Rule 60(b) allows “clerical errors” in “judgments, decrees, orders, or other parts of the record and errors therein arising from oversight or omission” to be corrected at any time or with permission of the appellate court if the appeal is pending. In McCuen, for example, this court upheld a trial court’s modification of an order over a year and a half after the original judgment had been filed and mandate had issued. The correction in McCuen, however, was made to include language in the judgment reflecting a fine levied against McCuen in open court but which was omitted in the written order. Such a correction is one that is specifically allowed under the current Rule 60(b) to correct a “clerical error” to make “the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.” Lord, 339 Ark. at 29. In addition, Rule 60(c) allows a judgment to be set aside under certain circumstances not applicable here.

Here, the State is asking this court to allow its appeal in this case and others to challenge “void judgments of acquittal” pursuant to Rule 60(a) or (b). There are three problems with the State’s position. First, the State is asking for specific relief under Rule 60(a) or its theoretical equivalent, and such relief may only be granted by the court within ninety days of the entry of the judgment. Here, Dawson’s judgment of acquittal was entered by the circuit court on January 13, 2000. Almost sixty days later, the State filed its motion to vacate that order on March 23, 2000. The court, however, did not issue its decision on the motion until June 9, 2000, almost five months and well over ninety days after the judgment was entered. As such, the State’s ability to utilize Rule 60(a) or its theoretical equivalent expired. See Slaton v. Slaton, 330 Ark. 287, 956 S.W.2d 150 (1997); Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993). Furthermore, the State’s grounds for vacating the judgment do not fall within any of the exceptions in Rule 60(c), which would allow modification after the ninety-day time limit.

Second, our case law only allows modification of an order after ninety days under the current Rule 60(b) “to correct mistakes or errors [or] to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken.” Lord, 339 Ark. at 29. Here, the State is not requesting an appeal to correct an error or mistake in the judgment itself “to speak the truth” as it occurred in the proceedings, but instead to change the circuit court’s actual order “to make it speak what it did not speak but ought to have spoken.” Rule 60(b) or its theoretical equivalent was not intended for such use, and to allow the State to use it in criminal cases for any purpose but to correct one of the limited reasons in Rule 60(b) or (c) would be to misapply the rule.

Finally, allowing the State to use Rule 60 here would only act to expand the State’s ability to appeal cases beyond those allowed under Ark. R. App. P. — Crim. 3. Rule 3 requires that the State show that there is a reason for the appeal, and to allow Rule 60(a) to apply in this case would automatically give the State a reason to appeal every time a judgment of acquittal is entered in circuit court without having to show that it is for the “correct and uniform administration of the criminal law.” This court has stated:

There is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3.

Guthrie, 341 Ark. at 628. Applying Rule 60 here would create and apply a rule broader than necessary in this case. We hold that the State has not demonstrated that the appeal of this matter involves the correct and uniform administration of the law and the direct appeal pursuant to Rule 3 is dismissed.

II. Writ of Certiorari

In its second point on appeal, the State argues that if a direct appeal is not allowed, this court should consider this matter as a petition for a writ of certiorari. The State argues the writ is proper because the circuit court was wholly without jurisdiction. The State asserts this is so because the record was not filed in circuit court within thirty days as required by Arkansas Inferior Ct. R. 9(a). The State argues that the record clearly indicates that Dawson lodged her appeal too late, and this case is proper for a writ of certiorari. Dawson responds that the writ is not proper because the State had other adequate remedies such as presenting a motion to the municipal court to enforce its judgment, filing a motion in circuit court to dismiss the appeal, objecting to the August 9, 1999, order by the circuit court indicating that the appeal was timely filed, raising the timeliness issue in the first notice of appeal from the circuit court’s order, seeking a writ of prohibition to prevent the circuit court from proceeding, or diligently seeking review of the jurisdiction issue. Dawson argues that the State’s lack of diligence and failure to challenge the matter in other ways now precludes the State from asking for a writ of certiorari here.

A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id. The court will grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. May Constr. Co., Inc. v. Thompson, 341 Ark. 879, 20 S.W.3d 345 (2000); Cooper Communities, Inc. v. Benton County Cir. Ct., 336 Ark. 136, 984 S.W.2d 429 (1999). It is not to be used to look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). This court has the discretion to treat an appeal from an order, judgment, or decree which lacks judicial support as if it were brought up on certiorari. Whitehead v. State, 316 Ark. 563, 873 S.W.2d 800 (1994); Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974). A writ of certiorari can address actions already taken by the lower court. May Constr. Co., supra.

Rule 9, “Appeals to circuit court,” states:

(a) Time for Taking Appeal. All appeals in civil cases from inferior courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within thirty (30) days from the date of the entry of the judgment.

This court has held that the thirty-day requirement for filing under Rule 9 is mandatory and jurisdictional, and the circuit court has no authority to accept untimely appeals. Lineberry v. State, 322 Ark. 84, 907 S.W.2d 705 (1995); Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). The timely filing of a notice of appeal is, and always has been, jurisdictional. Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994); Larue v. Larue, 268 Ark. 86, 593 S.W.2d 185 (1980). Because jurisdiction is the power or authority of a court to hear a case on its merits, lack of subject-matter jurisdiction is a defense that may be raised at any time by either party, even for the first time on appeal. Ibsen, supra; Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998); Ottens, supra. Subject-matter jurisdiction also may be raised before this court on its own motion, and this court has done so in criminal cases. See Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992); Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983).

Our case law regarding Rule 9 and subject-matter jurisdiction is clear —■ an untimely appeal precludes jurisdiction from being established in the appellate court to hear the case. If a court acts without jurisdiction, a writ of certiorari is proper. In Ottens, this court found that the untimely filing of the record under Rule 9 divested the circuit court of jurisdiction to hear an appeal from municipal court. As such, a writ of certiorari is proper here and shall be granted because the1 circuit court was wholly without jurisdiction to try the case de novo. Therefore, the judgment of the municipal court remains valid and enforceable. Ibsen, supra.

Writ of Certiorari granted.

BROWN, J., concurs in part; dissents in part.

ROBERT L. Brown, Justice,

concurring in part; dissenting in part. The State appeals on the basis that the judgment of acquittal for Beatrice Dawson is void due to lack of subject-matter jurisdiction in the circuit court and that this court should permit a collateral attack on the void judgment under Arkansas Rule of Civil Procedure 60(a). The majority correctly refuses to apply Rule 60(a) to criminal proceedings. See Ibsen v. Plegge, 341 Ark. 225, 15 S.W.3d 686 (2000); McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999).

The majority, however, then goes forward and permits the State to accomplish the same result by granting a petition for writ of certiorari to collaterally attack an order of acquittal. I do not agree with using certiorari for this purpose. In the past, this court has been resolute in holding that certiorari may not be used as a substitute for appeal. Arnold v. Spears, 343 Ark. 517, 36 S.W.3d 346 (2001); Neal v. Wilson, 321 Ark. 70, 900 S.W.2d 177 (1995); Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988); Henderson Meth. Church v. Sewer Imp. Dist. No. 142, 294 Ark. 188, 741 S.W.2d 272 (1987); Burney v. Hargraves, 264 Ark. 680, 573 S.W.2d 912 (1978). Farm Service Coop. v. Cummings, 262 Ark. 810, 561 S.W.2d 317 (1978); McKenzie v. Burris, 255 Ark. 330, 500 S.W.2d 357 (1973).

It is true that most of these cases deal with petitions for certiorari filed before an appeal was ripe. But that is exactly the point. Certiorari is available to correct jurisdictional defects or gross abuses of discretion while the case is ongoing. It should not be available as a vehicle for collaterally attacking an order of acquittal after that final order has been entered and time for appeal has passed. Indeed, the State cites no authority for allowing this.

State appeals are narrowly circumscribed under Rule 3 of the Rules of Appellate Procedure — Criminal. The majority opinion provides a new avenue for State reviews of judgments of acquittal and, in doing so, expands the scope of Rule 3 considerably. What it could not do under Rule 3, we allow it to do by certiorari. It appears clear that this appeal was not timely filed by Dawson in circuit court. But it is equally clear that the State did not challenge the jurisdictional defect until after trial, acquittal, and the time for appeal and posttrial motions had expired. Apart from the Double Jeopardy implications in all this, it appears that the State was not diligent and, thus, forfeited its right to petition for extraordinary relief.

For these reasons, I respectfully dissent from the decision granting the writ of certiorari.

       Prior to the January 2000 amendment, Rule 60(a) and (b) stated:
      (a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own motion or on the motion of any party and after such notice, if any as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
      (b) Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.