text:
    Jimmy L. KING v. STATE of Arkansas
    CR 95-884
    916 S.W.2d 725
    Supreme Court of Arkansas
    Opinion delivered February 26, 1996

      Thomas A. Potter, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Jimmy L. King appeals his conviction for aggravated robbery and first-degree battery and his sentence of 60 years. He contends that the circuit court erred in refusing to suppress a photo lineup and in-court identification. We conclude that the circuit court ruled correctly, and we affirm.

On April 17, 1993, Tammy Akins, Kristine Barnette (now Templeman), Lynette Oliver, and Kelly Eaves (now Barnette) drove to Fat Jacks Oyster Bar in Texarkana to celebrate Kelly Eaves upcoming marriage. When they arrived, they parked in the last row of parking places. Eaves, who was driving, turned the car off and opened her door to get out. Akins and Barnette were in the back seat. Barnette’s door was locked so she reached across Akins and opened her door, while Akins was rummaging through her purse. As the door opened, a man leaned into the car and said, “Give me all your money.” Akins responded sharply that the man was not getting her money. The man then put a gun to her chest, and Akins kicked him in the stomach. The man leaned back into the car, shot her, and fled.

Eaves started the car, drove to an E-Z Mart down the street, and called the Texarkana Police Department. Akins did not realize that she had been shot until about an hour later when she began breathing irregularly and was rushed to the hospital. The bullet had pierced her stomach twice before becoming embedded in a mass of muscle.

On April 18, 1993, the day after the shooting, Sergeant Mike Mauldin of the Texarkana Police Department conducted a photographic lineup consisting of several sheets of pictures in which King’s picture was included. These lineups were separately shown to Kelly Eaves and Kristine Barnette. Neither could make an identification. On May 11, 1993, these same photographs were shown to the victim, Tammy Akins. She, too, was unable to make an identification.

On May 25, 1993, Tammy Akins was shown a second photo lineup of six photographs, where a different, more recent picture of King was included. All six men photographed had some facial hair. King was the only person included in both lineups. This time Akins tentatively identified King as the person who shot her. This same photo lineup was shown to Kristine Barnette on May 28, 1993, and Barnette positively identified King as the perpetrator.

Based on these identifications, King was charged with aggravated robbery and first degree battery. Prior to trial, King moved to have the photo lineups, as well as any subsequent in-court identification, suppressed on the basis that the pretrial lineups were unduly suggestive. Both motions were denied. At trial, Tammy Akins and Kristine Barnette positively identified King as the offender. King was ultimately convicted by a jury on both counts and sentenced to sixty years imprisonment.

King urges on appeal that the circuit court erred in denying his motion to suppress the pretrial identifications and the in-court identifications by Tammy Akins and Kristine Barnette. He contends that the identifications should have been suppressed because the pretrial identification procedure was unduly suggestive and tainted the later in-court identifications. He then argues that the identifications should have been excluded because they lacked sufficient indicia of reliability. Neither argument has merit.

A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). But even when the process is suggestive, the circuit court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be decided by the jury. Neil v. Biggers, 409 U.S. 188 (1972); Monk v. State, supra; Bishop v. State, supra. In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993); Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991); Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988); see also Neil v. Biggers, supra.

King contends that the pretrial photo lineups were unduly suggestive because his photograph was the only one that appeared in two separate lineups, thus suggesting his identification and creating a likelihood of misidentification. Secondly, he contends that the photo spreads were unnecessarily suggestive because of the State’s failure to create a lineup consistent with the witnesses’ description of the suspect. Both arguments are without merit.

This court is hindered in deciding this issue with respect to the first photo lineup because the photos in the lineup were not preserved by the Texarkana police, with the exception of the photograph of King. Thus, we are unable to determine whether King’s photograph from the first lineup was so different from the others as to single him out and, thereby, taint his identification in the second lineup. See Jackson v. State, 318 Ark. 39, 883 S.W.2d 466 (1994). Nevertheless, in viewing the pictures in the second lineup in conjunction with the photograph of King from the first lineup, we conclude that the process was not unduly suggestive. First, the two photographs of King are different. In the second photograph used in the second lineup, his hair is longer, and his moustache is fuller. Moreover, and most importantly, there is nothing in the second lineup which would direct a witness toward King as the primary suspect. In fact, Akins had trouble distinguishing between two of the photographs included in the second lineup when testifying at the suppression hearing. Nor has there been any legitimate insinuation that Sergeant Mauldin sought to influence the identification by the methods he used in presenting the photographs. See Foster v. California, 394 U.S. 440 (1969). Finally, this court in Monk v. State, supra, stated that the fact the defendant was the only person included in both a photographic lineup and a physical lineup did not, in itself, render the identification unduly suggestive. See also Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993). The same rationale should apply here.

King also maintains that the second photo lineup was unduly suggestive because the photographs were not consistent with the witnesses’ description of the suspect. This specific argument was not ruled upon by the trial court and thus is not preserved for appeal. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995); State v. Torres, 309 Ark. 422, 831 S.W.2d 903 (1992).

King’s final argument is that the identifications were unreliable. Though the bulk of the reliability factors cited above appear to be satisfied, we need not address them because we hold that the process involved was not unduly suggestive. Again, this court will not inject itself into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Bishop v. State, supra; Moore v. State, 304 Ark. 558, 803 S.W.2d 553 (1991). It was for the jury to evaluate the weakness or strength of the identification testimony, and we cannot say that the circuit court abused its discretion in admitting the evidence. See Monk v. State, supra.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Anthony Lamar ABERNATHY v. STATE of Arkansas
    CR 95-966
    914 S.W.2d 763
    Supreme Court of Arkansas
    Opinion delivered February 26, 1996

      Anthony Lamar Abernathy, no response.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Per Curiam.

The state moves to complete the record on appeal, requesting the opening statement and closing argument be included. The state has had numerous extensions to file its brief — one on December 4, 1995, one on December 11, 1995, and another on January 10, 1996. To grant the state’s present motion will require another extension.

The state offers no explanation for its delay in requesting the record be made complete, and we discern none, since appellant’s notice of appeal filed on March 20, 1995 clearly excluded opening statements and closing arguments. The necessity for additional record should have been evident either before or at the time appellant filed his brief on October 30, 1995.

Because appellant is said to voice no objection to the state’s motion, we grant it. We also stay brief time until thirty days after the record is completed, but we admonish the state that no further extensions will be approved.


text:
    Johnny BRADLEY v. STATE of Arkansas
    CR 95-895
    916 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered February 26, 1996

      Honey & Honey, P.A., for appellant.
    No response.
   Per Curiam.

The appellant seeks an extension of time in which to complete and file his record on appeal. Due to the special circumstances in the case, we grant the motion.

On October 23, 1995, we granted appellant’s pro se motion for a belated appeal. Attorney Charles Honey was appointed to represent the appellant and was directed to file a petition for a writ of certiorari to complete the record. The petition was filed on December 11, 1995. We issued the writ to the Ouachita County clerk and court reporter on January 16, 1996, returnable on February 15, 1996. The writ has not been returned.

On January 29, 1996, the appellant filed the instant motion for an extension of time in which to complete and file the record. His motion states that the court reporter who originally recorded the trial proceedings has retired, causing the new reporter to be overloaded.

Ordinarily, we do not allow an extension of time once the clerk and court reporter have been directed to return a writ on a certain date. However, the circumstances in this case are exceptional. One court reporter has retired, leaving a new reporter with an increased burden. Additionally, the appellant’s attorney was appointed only recently and no delays in the case can be attributed to him.

A new writ of certiorari is hereby issued to the clerk and court reporter of Ouachita County, returnable on March 26, 1996.

Motion granted.


text:
    Donald BRIDGES v. STATE of Arkansas
    CR 96-181
    914 S.W.2d 762
    Supreme Court of Arkansas
    Opinion delivered February 26, 1996

      Mike Everett, for appellant.
    No response.
   Per Curiam.

The appellant, Donald Bridges, has filed a motion for belated appeal or rule on the clerk. As he filed his notice of appeal prior to the disposition of a post-trial motion listed under Ark. R. App. P. 4(c), it was of no effect. Appellant’s attorney admits he was responsible for the failure to file an additional notice of appeal.

We treat the motion as one for a belated appeal and grant the motion. We find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See Brown v. State, 321 Ark. 282, 900 S.W.2d 954 (1995). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Leonard DOKES v. STATE of Arkansas
    CR 96-208
    914 S.W.2d 762
    Supreme Court of Arkansas
    Opinion delivered February 26, 1996

      Brockman, Norton & Taylor, by: C. Mac Norton, for appellant.
    No response.
   Per Curiam.

Leonard Dokes was convicted of driving while intoxicated. He attempted to lodge the record of trial with this Court, but the Clerk refused the record because the notice of appeal was not filed within the prescribed time. Mr. Dokes, through his counsel C. Mac Norton, has moved for a rule on the clerk. In these circumstances we treat the motion as one for a belated appeal. Phillips v. State, 320 Ark. 392, 896 S.W.2d 890 (1995).

We grant the belated appeal because the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal constitutes a denial of effective assistance of counsel and good cause for a belated appeal. Gay v. State, 288 Ark. 589, 707 S.W.2d 320 (1986).

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Thomas F. STORY v. STATE of Arkansas
    95-504
    915 S.W.2d 723
    Supreme Court of Arkansas
    Opinion delivered February 26, 1996

      Thomas F. Story, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen. and Senior Appellate Advocate, for appellee.
   Per Curiam.

After being convicted of aggravated assault, appellant Thomas F. Story petitioned the Searcy County Circuit Court to return bond money allegedly posted on his behalf by a party who was allegedly reimbursed by Mr. Thomas. The petition was denied, and Mr. Story appealed.

In response to a contention by Mr. Story that the record of proceedings concerning the return of the bond money was incomplete, we remanded the case to the Trial Court on June 26, 1995, to settle the record. The State has moved to dismiss the appeal because no action to settle the record has been taken by the Trial Court.

Mr. Story has moved to disqualify Circuit Judge David Reynolds, claiming the delay is the result of bias. He also asks that the record include transcripts of a hearing held by Judge Reynolds on July 15, 1995, and a telephone conference with Judge Reynolds which occurred on July 17, 1995, each of which concerned the issue at hand.

The Searcy County Circuit Court is ordered to present to this Court within 30 days the settled record in this matter, to include transcripts of any recorded hearing or recorded hearing by telephone conference concerning this case and which occurred on July 15 or July 17, 1995.

The State’s motion to dismiss the appeal is denied. Mr. Story’s motion to disqualify Judge Reynolds is denied without prejudice.


text:
    Jeffery L. WILLIAMS v. STATE of Arkansas
    CR 96-146
    916 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered February 26, 1996

      Jeff R. Conner, for appellant.
    No response.
   Per Curiam.

Appellant, Jeffery L. Williams, by his attorney, Jeff R. Conner, has filed a motion for a rule on the clerk and a petition for writ of certiorari to complete the record. Conner states by motion that, although he timely filed a notice of appeal from judgment entered September 26, 1995, pursuant to reversal and remand by this court, and although he requested the court reporter to prepare the record in this case, the ninety days for filing the record has expired and, due to mistake on his part, he has not filed the record or sought an extension.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant relief. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). We therefore grant the requested relief and, consistent with Ark. Sup. Ct. R. 3-5, direct the circuit clerk and court reporter to complete and certify the record by March 27, 1996.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Christopher PETREE v. STATE of Arkansas
    CR 94-987
    920 S.W.2d 819
    Supreme Court of Arkansas
    Unpublished opinion delivered July 10, 1995
    [Appellee’s motion requesting publication of opinion granted September 11, 1995.]

      Chaney W. Taylor, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Acting Deputy Att’y Gen. and Senior Appellate Advocate, for appellee.

       Jesson, C.J., not participating.

   Per Curiam.

The appellant pleaded guilty to driving while intoxicated, fourth offense, and was sentenced to two years imprisonment to be followed by five years of probation. His driver’s license was revoked for three years. The judgment and commitment order was filed on August 27, 1993. On May 16, 1994, the appellant filed a petition to vacate sentence pursuant to Arkansas Code Annotated § 16-90-111 (Supp. 1993) and Rule 37 of the Arkansas Rules of Criminal Procedure. He argued that the term of two years of incarceration followed by five years of probation exceeded the statutory maximum allowed by law. The court granted the petition, and on June 6, 1994, the appellant appeared before the Independence County Circuit Court for resentencing. The new sentence was a term of sixty months to be served at the Arkansas Department of Correction. The appellant brings this appeal.

The appellant argues that the trial court erred in the following ways: (1) the trial court failed to set forth particular reasons for increasing the term of imprisonment; (2) it failed to allow him the opportunity to withdraw a previous plea of guilty; (3) it solicited and obtained information regarding pending charges against him, yet failed to consider favorable factors to him; and (4) the two-year imprisonment portion of the original sentence was valid, had already been put into execution, and therefore was not subject to modification. The Independence County Circuit Court’s judgment and commitment order of June 6, 1994, is reversed because the court lacked jurisdiction to resentence the appellant.

The original judgment and commitment order was illegal, as the appellant originally maintained, because the two-year imprisonment followed by a five-year term of probation exceeds the maximum penalty for the offense committed as defined under Ark. Code Ann. § 5-65-111 (b)(3) (Repl. 1993) and because the imposition of probation following a term of imprisonment is prohibited by Ark. Code Ann. § 5-4-104 (Repl. 1993). However, as stated before, the trial court had no jurisdiction to correct the illegal sentence.

The appellant failed to file his May 16, 1994, petition to vacate sentence in a timely manner. Rule 37 has filing deadlines that govern not only Rule 37 petitions but also petitions to correct illegal sentences filed pursuant to Ark. Code Ann. § 16-90-111 (a). Arkansas Rule of Criminal Procedure 37.2(c) states, in pertinent part:

... If conviction was obtained on a plea of guilty, . . . the petition claiming relief under this rule must be filed in the appropriate circuit court within ninety (90) days of the date of the entry of judgment.

Arkansas Rule of Criminal Procedure 37.2(b) states, in pertinent part:

. . . All grounds for post-conviction relief from a sentence imposed by circuit court, including claims that a sentence is illegally imposed, must be raised in a petition under this rule.

These filing deadlines are jurisdictional in nature. If they are not met, a circuit court lacks jurisdiction to consider the Rule 37 petition at issue or the petition to correct illegal sentence at issue on its merits. Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Bailey v. State, 312 Ark. 180, 848 S.W.2d 391 (1993).

The appellant should have filed his petition within ninety days of August 27, 1993, the date that the original judgment and commitment order was entered against him. Because the petition was not filed in a timely manner, the circuit court was required to dismiss the petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). Although the provisions of Ark. Code Ann. § 16-90-111 (a) permit a circuit court to correct an illegal sentence at any time, this court has held that this provision is invalid to the extent that it conflicts with Rule 37.2(b). Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995); Harris v. State, 318 Ark. 599 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994). The case is remanded to the Independence County Circuit Court to reinstate the original judgment and commitment order.

Reversed and remanded.


author: Bradley D. Jesson, Chief Justice.

text:
    EDWARD J. DEBARTOLO CORPORATION v. Vallie CARTWRIGHT
    94-1147
    916 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996

      The Hardison Law Firm, by: M. Scott Willhite, for appellant.

      Wilson & Associates, by: E. Dion Wilson, for appellee.
   Bradley D. Jesson, Chief Justice.

The issue on appeal is whether the trial court erred in denying the appellant’s motion to set aside a default judgment. We hold that the default judgment should have been set aside and therefore reverse and remand the case.

On September 30, 1993, Vallie Cartwright filed a complaint in Phillips County Circuit Court naming “DeBartlo, Inc.” as defendant. The complaint alleged that “DeBartlo, Inc.” was an out-of-state corporation and the owner of Raleigh Springs Mall in Memphis. Ms. Cartwright claimed that on June 21, 1992, she slipped and fell at the mall and that her injuries were proximately caused by the defendant’s negligence. A summons was likewise directed to “DeBartlo, Inc.”

The complaint and summons were sent by certified mail to Prentice Hall Corporate Services, Inc. in Little Rock, purportedly the agent for service of process in Arkansas for “DeBartlo, Inc.” Prentice Hall received the suit papers on October 4, 1993, and immediately returned them to Ms. Cartwright’s counsel. The papers were accompanied by a letter stating that service was improper because the name of the corporate defendant was incorrect.

On October 14, 1993, Ms. Cartwright filed an amended complaint. It did not adopt and incorporate the original complaint, or make any reference to it. However, it was the same in all respects as the original complaint except the defendant’s name had been changed to “Edward J. DeBartolo Corporation.” The amended complaint and summons were sent to Prentice Hall and received on October 18, 1993. Fifteen days later, on November 2, 1993, a default judgment was entered against “DeBartlo, Inc. (a/k/a Edward J. DeBartolo Corporation)”. The judgment declared that the corporation had failed to answer the complaint against it within 20 days.

On November 5, 1993, eighteen days after service of the amended complaint, the appellant filed two pleadings: a motion to dismiss, primarily alleging lack of personal jurisdiction, and a motion to set aside the default judgment. In its motion to set aside, the appellant claimed that it had twenty days from the date the amended complaint was served in which to file a response, thereby making the November 2 default judgment premature.

The trial court denied the motion to set aside and found that the appellant’s time for responding was measured from October 4 — the date the original complaint naming “DeBartlo, Inc.” was served on Prentice Hall. In two subsequent motions, the appellant asked for a ruling on the personal jurisdiction question. No hearing was held, but the court ultimately found that service on the appellant’s Arkansas agent and the appellant’s appearance on the motion to set aside waived any objection to jurisdiction. On June 22, 1994, the court entered its final order, awarding $7,500 in damages to Ms. Cartwright.

The appellant presents two arguments: 1) the October 4 service was defective because it did not contain the correct corporate name of the defendant, and 2) its time for response should have been measured from service of the amended complaint rather than the original complaint. Because we agree with the appellant’s second argument, it is not necessary to reach the first.

Rule 15(a) of the Arkansas Rules of Civil Procedure provides that a party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 20 days after service of the amended pleading, whichever period is longer. Assuming, strictly for the sake of explanation, that both the October 4 service and the October 18 service were proper, the appellant had the longer of the following times to respond: 1) the time remaining for response to the original complaint (response due October 24), or 2) twenty days after service of the amended complaint (response due November 7). The longer of the two periods would have made the response due November 7. Therefore, the appellant was not in default when judgment was entered against it on November 2. Further, its motion to dismiss filed on November 5 was a timely response to the amended complaint.

The appellee relies on the case of Tom E. Jones Constr. Co. v. Holmes, 11 Ark. App. 88, 666 S.W.2d 412 (1984), to support her argument that the response time should be measured from service of the original pleading. In that case, Jones was sued and served with an original complaint. Twelve days later, the plaintiff filed an amended complaint adding another defendant. Jones failed to answer the original complaint in a timely fashion, but argued that the filing of an amended complaint extended its response time. The court of appeals disagreed and upheld entry of a default judgment. The facts are somewhat distinguishable from this case. Jones, unlike the appellant herein, was never served with an amended complaint, so was hardly in a position to argue entitlement to additional response time. However, despite the distinguishing factors in Jones, it contains some broad language which could be read to say that, in a situation like the instant one, the filing of an amended complaint does not affect the defendant’s time for response. To the extent that Jones conflicts with our holding today, it is overruled.

We have found one case from another jurisdiction which contains a similar fact situation. In Reichert v. TRW, Inc., 531 Pa. 193, 611 A.2d 1191 (1992), a defendant, Falcon, did not respond to an original complaint, claiming service was defective. Prior to seeking a default judgment against Falcon, the plaintiff filed an amended complaint. The Pennsylvania court did not address the issue of defective service of the original complaint, but instead considered the amended complaint the operative pleading. The court stated:

[the] appellees, by not taking the default prior to the amendment [of their complaint] and by including Falcon in their amended complaint, foreclosed their ability for default judgment on the original complaint.

The Reichert case incorporates the widely recognized doctrine that an amended complaint, unless it adopts and incorporates the original complaint, supersedes the original complaint. See C. Wright, A. Miller, & M. Kane, 6 Federal Practice and Procedure, §1476 at 556-57 (1990); J. Moore, 3 Moore's Federal Practice, §15-08[7] (2d ed. 1995); W. L. Scott, Inc. v. Madras Aerotech, Inc., 103 Idaho 736, 653 P.2d 791 (1982); Hall v. Insurance Co. of North America, 666 A.2d 805 (R.I. 1995); In re Marriage of Lockwood, 857 P.2d 557 (Colo. App. 1993).

Based upon the foregoing, we hold that the appellant’s time for response should have been calculated from the date of service of the amended complaint. Therefore, the entry of a default judgment prior to the expiration of the response time was improper.

The appellant raises one additional issue on appeal, arguing that it was not subject to the jurisdiction of the Arkansas courts. The record does not reflect that the matter was fully developed at the trial level. A motion to dismiss and brief in support were filed, alleging a lack of contacts with the state of Arkansas. Later, the appellant supplemented the motion with an affidavit from a corporate representative. No response was filed by the appellee, nor was a hearing held on the matter.

It is possible that the trial judge, in light of the entry of default judgment, did not feel it necessary to fully explore the jurisdictional issue. Since the default judgment is now set aside, this issue may be revisited upon remand.

Reversed and remanded.

Special Justices Mary Ann Westphal, Jerry Canfield and Charlene Marsh join in this opinion.

Dudley, Glaze and Corbin, JJ., not participating.

       The parties and the court apparently thought that, since the appellant had an agent for service in the state of Arkansas, it was not entitled to the thirty days response time accorded to nonresidents. See ARCP Rule 12(a). In fact, the appellant did have thirty days. See Citicorp Industrial Credit, Inc. v. Wal-Mart Stores, 305 Ark. 530, 809 S.W.2d 815 (1991). However, this misunderstanding does not affect our holding and we mention it only for the purpose of clarity.

       The appellee argues that the appeal does not arise from a final, appealable order. The court entered a default judgment and awarded monetary damages. The notice of appeal recites that appeal is taken from the entry of the default judgment and that the court entered its final order on June 22, 1994. There is no defect in the notice of appeal and the court’s June 22 order was a final one.


author: David Newbern, Justice.

text:
    O.W. RAY and Neil Ray v. James and Paula MILLER and Scott E. Poynter
    95-1051
    916 S.W.2d 117
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996

      Ogles Law Firm, P.A., by: John Ogles, for appellants.

      Robert E. Bamburg, for appellees James and Paula Miller.

      Poynter & Gearhart, P.A., by: Terry M. Poynter, for appellee Scott E. Poynter.
   David Newbern, Justice.

This appeal is about whether land purchased by the appellees, James and Paula Miller and Scott E. Poynter, from the appellants, O.W. Ray and Neil Ray (the Rays), is burdened by a restriction preventing installation of “zero clearance fireplaces” in homes constructed by the Millers and Mr. Poynter. The Chancellor dismissed the Rays’ claim after hearing their case in chief. We affirm the decision.

The Rays developed a subdivision in phases. The Millers and Mr. Poynter purchased residential lots in phase II of the development. The convenances to them each included a bill of assurance which stated “all chimneys and foundations below siding shall be constructed with brick or stone.” It contained no reference to fireplaces.

The Millers and Mr. Poynter constructed homes with brick chimneys but used other than masonry materials inside the chimneys. Such construction was apparently made possible by the use of a metal insert fireplace box and a metal pipe or flue extended through the chimney. In his testimony Bill Ray referred to the construction used as “zero clearance fireplace.” He said he had informed the Millers and Mr. Poynter during construction of their homes that fireplace construction had to be all-masonry. Barry Gable, a contractor, testified he understood the fireplaces in the subdivison were to be all-masonry but he admitted his understanding was based upon provisions in covenants contained in instruments conveying lots in other phases of the subdivision. Harry Polovina, a resident of the subdivision, testified he understood the phase II bill of assurance meant all-masonry fireplaces even though there was no reference to fireplaces. A Mr. Hippie gave similar testimony.

1. Bill of assurance

In responding to the motion to dismiss, the Chancellor concluded there was nothing in the bill of assurance applicable to the Millers’ and Mr. Poynter’s lots which mentioned fireplaces or flues. Nor was there evidence that the chimneys were constructed of anything other than bricks and concrete blocks.

Courts do not favor restrictions upon the use of land, and if there is a restriction, it must be clearly apparent. Harbour v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984). See also Shermer v. Haynes, 248 Ark. 255, 451 S.W.2d 445 (1970). When the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, and it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction. Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970).

When there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint will be decreed. If there is any doubt, the covenants are to be construed strictly against those seeking to enforce them and liberally in favor of freedom in use of the land. Baldischwiler v. Atkins, 315 Ark. 32, 864 S.W.2d 853 (1993).

The Chancellor was undoubtedly correct in holding there was no written restriction preventing the construction in question.

2. General plan of development

The Rays contended their evidence was sufficient to show a general plan of development in the subdivision sufficient to bind the Millers and Mr. Poynter and prohibit the use of the zero clearance fireplaces.

Again in response to the motion to dismiss, the Chancellor found there was no substantial evidence of a general plan of development affecting the subdivision. Even if we could say there was substantial evidence of a general plan of development suggesting the homes built in the subdivision were not to have zero clearance fireplaces, the result reached was correct.

In Knowles v. Anderson, 307 Ark. 393, 821 S.W.2d 466 (1991), we pointed out that restrictive covenants must be in writing. See Ark. Code Ann. § 18-12-103 (1987). As to the effect of a general plan, we said:

As the Harbour [v. Northwest Land Co., 284 Ark. 286, 681 S.W.2d 384 (1984)] opinion makes clear, it is proper to consider whether a general plan of development exists when determining whether a written covenant or restriction contained in the chain of title of the party seeking to avoid the restriction remains valid. We have no case in which a restriction has been created as the result of a general development scheme.

The Chancellor did not err in dismissing the Rays’ claim that a general plan of development had established the asserted restriction on the Millers’ and Mr. Poynter’s lots.

Affirmed.

Dudley, J., not participating.


text:
    Barry Lynn SIMPSON v. STATE of Arkansas
    CR 95-967
    916 S.W.2d 119
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Barry Lynn Simpson pleaded guilty to the charge of first-degree murder in connection with the death of his father. In the sentencing phase of his trial, the State presented the testimony of members of the family concerning the effect the crime had upon them and their children. Mr. Simpson argues it was reversible error to have received the testimony because he was not notified that the witnesses would testify. We affirm the conviction because the issue presented on appeal was not presented to the Trial Court.

At the sentencing hearing, Mr. Simpson’s only argument was that the witnesses should not have been allowed to testify because their testimony was cumulative to evidence contained in the presentencing report. The point about lack of notice was not presented and is entirely different from the argument made to the Trial Court. If the ground of an objection is changed on appeal, the argument is considered to have been waived. Whitney v. Holland Retirement Ctr., 323 Ark. 16, 912 S.W.2d 427 (1996); Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

Affirmed.


author: Donald L. Corbin, Justice.

text:
    Erie Randall NANCE v. STATE of Arkansas
    CR 94-413
    918 S.W.2d 114
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996
    [Petition for Rehearing denied April 15, 1996.]

      Larry W. Horton and Phyllis J. Lemons, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly K. Hill and Pamela Rumpz, Asst. Att’ys Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Eric Randall Nance, appeals the amended judgment of the Hot Spring County Circuit Court entered on April 11, 1994, convicting him of one count of capital murder. See Nance v. State, 319 Ark. 292, 891 S.W.2d 28 (1995) (per curiam) (granting motion for rule on the clerk and finding timely notice of appeal from amended judgment); Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994) (per curiam) (denying motion for rule on the clerk). Appellant was tried by a jury and sentenced to death by lethal injection. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant raises ten points for reversal. We find no error and affirm the trial court’s judgment.

Appellant was charged by information, as amended, with capital murder by premeditated and deliberated purpose, Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1993), or, in the alternative, with capital murder by felony murder, Ark. Code Ann. § 5-10-101(a)(1) (Repl. 1993). The underlying felonies charged were rape, attempted rape, kidnapping, and attempted kidnapping. The sole underlying felony with respect to which the jury was instructed, however, was attempted rape. The jury returned a verdict of guilty of capital felony murder.

The charges arose from the following events. On October 11, 1993, the vehicle of the victim, Julie Heath, was reported abandoned on Highway 270, west of Malvern near Interstate 30. On October 18, 1993, the victim’s body was discovered on rural property just south of Highway 171 approximately 7.5 miles from the location where the victim’s vehicle was found. The medical examiner, Dr. Frank Peretti, testified that it was likely that there was trauma to the skull and neck region of the victim’s body, based on the accelerated skeletonization and evidence of insect activity in that area as compared with the relatively intact remainder of the body. Although the autopsy failed to reveal the cause or manner of death, Dr. Peretti could not rule out death by knife wound and testified that examination of the victim’s shirt showed defects consistent with a cutting wound.

At trial, appellant’s brother, Vernon Nance, and appellant’s sister, Belinda Christopher, testified that, after initially denying any involvement in the crime, appellant later stated that he had accidentally killed the victim. Vernon Nance testified that appellant stated that he gave the victim a ride into Malvern because her automobile had broken down on the road, that the victim saw his work knife slide out of his pocket as they drove, that the victim asked him to put the knife away, that, as he moved to put the knife in the glove compartment, the victim turned sideways in the seat and started kicking him, that he put his hand up to keep her from kicking and hitting him, and that the knife fatally lodged in her throat. Appellant made a similar statement to his sister.

Throughout his brief, appellant asserts the denial of his constitutional rights by means of merely conclusory allegations without supporting authority. In such circumstances, we decline to consider his constitutional arguments. Rucker v. State, 320 Ark. 643, 899 S.W.2d 447 (1995).

1. Motion for directed verdict

We first consider appellant’s argument that the trial court erred in denying his motion for a directed verdict on the ground that insufficient proof was introduced of the underlying felony, attempted rape. Our standard of review is as follows:

In a challenge to the sufficiency of the evidence, this court reviews the evidence in the light most favorable to the State and sustains the judgment of conviction if there is substantial evidence to support it. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. In reviewing the sufficiency of the evidence, we need only consider evidence in support of the conviction.

Pike v. State, 323 Ark. 56, 60, 912 S.W.2d 431, 433-4 (1996) (citations omitted) (quoting Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995)). Circumstantial evidence constitutes substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Id.

We find that the circumstantial evidence of attempted rape is substantial. Some of this evidence includes:

(1) Opinion testimony of criminalist Donald E. Smith that blood, head and pubic hairs recovered from appellant’s vehicle belonged to the victim, and that hairs recovered from the victim’s clothing belonged to appellant;
(2) Opinion testimony of forensic serologist Kermit Channell that, based on his tests, he could neither confirm nor deny that sexual intercourse had occurred, that the exposure of the victim’s body to the weather could account for lack of some evidence, and that enzyme-characteristic analysis showed blood recovered from appellant’s vehicle was consistent with the victim;
(3) Opinion testimony of forensic scientist Richard Guererri that DNA analysis of the victim’s muscle tissue was consistent with blood recovered from appellant’s truck seat and from the victim’s shirt pad;
(4) Testimony of Dr. Peretti that the victim’s brassiere was pulled up around the neck and shoulder area, her socks and panties were inside out, her pants were partially zipped, and her shirt was inside out;
(5) Testimonies of two workers at a convenience store located in Malvern near the interstate, Tina Loy and Christy Sims, that appellant entered the store at approximately 12:30 a.m. on October 12, 1993, appeared to be hot and was wearing bib overalls with dark stains on the front that appeared fresh, and wore no shirt, shoes or socks;
(6) Testimony of appellant’s girlfriend, Christy Jones, that appellant left her house in Hot Springs at approximately 9:30 p.m. on October 11, 1993, wearing overalls and a tee shirt; and
(7) Testimony of Sheriffs Officer Kirk McClenahan that the victim’s body was discovered with the shirt turned inside out with one shoulder pad on the outside.

2. Record of probable-cause proceeding

On October 22, 1993, the state filed a motion to determine whether probable cause existed to charge appellant with the crime. The motion recites that appellant was arrested for the crime by the Hot Spring County Sheriffs Department on October 20, 1993, had been in the sheriff’s custody since arrest, and that “probable cause time” would expire on October 22, 1993, unless probable cause to charge was found.

Arkansas Rule of Criminal Procedure 4.1(e) provides that a person arrested without a warrant shall not be held in custody unless a judicial officer determines from an affidavit, recorded testimony, or other information, that there is reasonable cause to believe that the person committed an offense. Rule 4.1(e) further provides that the judicial determination shall be made within forty-eight hours of the time of arrest, except in extraordinary circumstances, and may be made at the first appearance of the arrested person pursuant to Ark. R. Crim. P. 8.1. See also Ark. R. Crim. P. 8.3(c). These rules protect the federal constitutional right of a person to a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. Gerstein v. Pugh, 420 U.S. 103 (1975). At this preliminary stage, the state is required to present proof that justifies the accused’s arrest, not to establish the accused’s guilt.

In this case, the circuit court docket for October 22, 1993, states:

Informal probable cause hearing — Based on affidavit probable cause for charge of capital murder found — Bond set at $1,000,000.00 — P. Lemons appointed — Hearing set for October for plea and arraignment —

On October 22, 1993, the state filed the “Information With Affidavit” charging appellant with the victim’s capital murder, together with the supporting “Affidavit And Statement Of Probable Cause” of Lieutenant Doug Williams of the Arkansas State Police. Lieutenant Williams’s affidavit, dated October 22, 1993, recites that it is made for the purpose of obtaining an arrest warrant for appellant and charging him with the crime. A bench warrant for appellant was issued, served and filed on October 22, 1993.

Appellant argues that the trial court erred in denying his request that a “record” be made of the probable-cause proceeding, and that, as an indigent, the federal constitutional due-process guarantee absolutely entitled him to a “record.” We understand this argument to be a request for a verbatim transcription of the probable-cause proceeding. This argument is meritless.

Our Rule 4.1(e) provided that the judicial determination of probable cause at the October 22 proceeding could be made from affidavit, recorded testimony, or other information. The state chose the affidavit method. Lieutenant Williams’s October 22 affidavit, which was the basis for the judicial determination of probable cause, and the bench warrant are a part of the record on appeal. On these facts, we determine that appellant was not constitutionally entitled to a verbatim transcription of the probable-cause proceeding. Lieutenant Williams’s October 22 affidavit and the bench warrant, which are included in the record on appeal, satisfied appellant’s constitutional requirements to due process at this most preliminary stage of the criminal proceedings.

3(A). Demurrer

At the October 26, 1993 hearing for plea and arraignment, appellant demurred to the felony information on the ground that it failed “to state probable cause.” The trial court stated that the demurrer was effectively a motion to dismiss, summarily denied the demurrer because probable cause had previously been found, and entered a plea of not guilty. Appellant next argues that the denial of the demurrer was error. This argument is without merit. Lack of probable cause is not a statutory ground for a demurrer to an indictment, Ark. Code Ann. § 16-85-708 (1987), or, by implication, to an information. Cf. Neely v. State, 317 Ark. 312, 877 S.W.2d 589 (1994) (applying statute governing amendment of indictment, by implication, to amendment of a felony information).

3(B). Motion to quash felony information

On October 27, 1993, appellant filed a motion to quash the felony information for lack of probable cause to arrest or charge him with the crime. The trial court summarily denied the motion. Appellant next argues that the ruling was error. We disagree.

Lack of probable cause is not a statutory ground for a motion to set aside an indictment, Ark. Code Ann. § 16-85-706 (1987), McDonald v. State, 155 Ark. 142, 244 S.W. 20 (1922), State v. Fox, 122 Ark. 197, 182 S.W. 906 (1916), or, by implication, to quash an information, Neely, 317 Ark. 312, 877 S.W.2d 589.

Further, in State v. Garrison, 272 Ark. 470, 615 S.W.2d 371 (1981), this court held that the circuit court lacked authority to conduct a preliminary hearing, pending trial, to determine if probable cause existed to justify the charge brought by information and then to dismiss the information for want of probable cause. The Garrison court stated there was no constitutional or statutory authority for such a hearing, which it distinguished from the situation where the court must determine whether probable cause exists for extended restraint of an accused following an arrest. Gerstein, 420 U.S. 103; see also Ark. R. Crim. P. 8.3. In Garrison, as in the present case, the latter situation was not involved because the charge against the accused had already been filed in the circuit court and the issue of his pretrial detention had been judicially determined. See also State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991) (stating it was error for the circuit court to grant the accused’s motion to dismiss the information on the ground that the state’s proffered facts did not sustain the charge); accord State v. Jamison, 211 Ark. 349, 641 S.W.2d 719 (1982).

An accused is not entitled to a judicial review of the prosecutor’s filing an information charging him with an offense. Garrison, 212 Ark. 470, 615 S.W.2d 371. See also Gerstein, 420 U.S. at 118-19 (“In holding that the prosecutor’s assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute.”). In light of our determination that it was not error to summarily deny appellant’s motion to quash for lack of probable cause, we need not address the merits of his argument in support of the motion.

4. Motion to suppress

On March 29, 1994, the first day of trial, appellant filed a motion to suppress evidence obtained by a search of his truck on October 29, 1993. An evidentiary hearing was held outside the jury’s presence. The evidence showed that the search was conducted with the written consent of Vernon Nance, who had possession of the truck on October 20, 1993, and delivered it to the Hot Spring County Sheriffs Office for that purpose. The evidence also showed that the search was conducted pursuant to a search warrant issued on October 29, 1993. The trial court denied the motion and ruled the evidence admissible if relevant. Hair and blood samples recovered in the search were subsequently admitted for identification and expert testimony received at trial.

Appellant next argues that no probable cause existed for the search. We disagree. In reviewing the trial court’s ruling on the motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling is clearly against the preponderance of the evidence. Watson v. State, 308 Ark. 643, 826 S.W.2d 281 (1992). It is not necessary that sufficient information for a conviction be available when the search warrant is obtained, only that there is probable cause to believe that the place to be searched contains evidence of the crime. Johnson v. State, 270 Ark. 247, 604 S.W.2d 927 (1980), cert. denied, 450 U.S. 981 (1981). We have no doubt that such probable cause existed here.

The search warrant, issued on October 29, 1993, was based on Lt. Williams’s affidavit of the same date. Lt. Williams averred that the victim was reported missing since the evening of October 11, 1993, by her mother to the Malvern Police Department; that the victim’s vehicle was found abandoned on Highway 270, west of Malvern and approximately three miles west of Interstate 30 on the evening of October 11, 1993; that the victim’s body was discovered on October 18, 1993, on property just south of Highway 171, approximately 7.5 miles from the location where the victim’s vehicle was found; that the medical examiner estimated the time of the victim’s death to be between midnight and 1:15 a.m. on October 12, 1993; that the state police received a call on October 20, 1993, that appellant voluntarily committed himself to the Arkansas State Hospital, apparently distressed due to some incident in which he may have been involved; that appellant was incarcerated for eleven years in Oklahoma for rape and sodomy and was released on May 8, 1993; that appellant drove a truck; that, at approximately 9:00 p.m. on October 11, 1993, Rebecca Doyle observed a truck behind a car in the area where the victim’s vehicle was found; that appellant’s girlfriend, Christy Jones, stated that appellant left her home in Hot Springs in his truck headed for Malvern on October 11, 1993, between 9:00 and 9:30 p.m.; that, on October 12, 1993, shortly after midnight, two employees of a convenience store near Highway 270 and Interstate 30 were told by appellant that his truck had broken down and that he had run to the store; that appellant immediately went to the bathroom in the convenience store and came out drying his hands; that appellant called his mother and brother on October 12, 1993, shortly after midnight, to help him fix a flat on his truck, which was located on Highway 171 approximately 1.1 miles from the place where the victim’s body was found; that Ms. Jones stated appellant washed his truck and shampooed its interior on October 12, 1993, and appeared depressed; and that appellant’s minister reported that appellant told him, on October 14, 1993, that he feared facing a fabricated charge involving “the girl missing in Malvern.”

Appellant next argues, without citation to authority, that the search warrant was invalid because the application for the search warrant was dated October 21, 1993, eight days prior to the date of Lt. Williams’s affidavit in support of the search warrant application and the search warrant. At the hearing on the motion to suppress, Lt. Williams testified that the date on the application was an error and that he recalled that, on October 29, 1993, he appeared before the circuit court judge, made his affidavit, and the search warrant was granted. The trial court stated that the testimony revealed an apparent misprision in the documents, and then ruled that the warrant was properly issued. On this record, no error is demonstrated.

Appellant next argues that the search was invalid because Vernon Nance had no standing to consent to the search of appellant’s truck. We need not address this argument in light of our determination that the search was proper pursuant to warrant.

5. Photographs

Appellant next argues that three photographs taken at the crime scene were admitted in error because they are gruesome, inflammatory photographs of the victim’s body that were not necessary to help the witnesses depict the crime scene. Although appellant failed to abstract these photographs, we have reviewed them and consider his argument, as required by Ark. Sup. Ct. R. 4-3(h). Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). We find appellant’s contention is without merit.

Specifically, appellant challenged the admission of State’s Exhibits 5, 6 and 8. State’s Exhibits 5 and 8 were admitted when Herbert Chandler, Jr. testified that they showed the body that he found near his property off Highway 171. State’s Exhibit 5 is taken from the road and depicts the wooded crime scene and the victim’s body, which is identifiable from that distance only as a dark form resting in the underbrush. State’s Exhibit 8 depicts the victim’s body, as it was discovered, from a closer view and clearly reveals the decomposing upper torso and partially skeletonized head. Appellant objected that these photographs were irrelevant and admitted solely to inflame the jury. The trial court ruled that the photographs were admissible because they accurately depict the crime scene, the position of the body, the clothing on the body and other items probative of the state’s case.

State’s Exhibit 6 was admitted when Arkansas State Police Officer Charles Hefner testified that it depicted some of the victim’s hair that was found at the crime scene between the victim’s body and the road, and that the hair was taken by the medical examiner’s investigator. State’s Exhibit 6 is a closeup view of two clumps of hair in the underbrush, but does not depict the victim’s body. Appellant objected that this photograph lacked probative value and was cumulative of State’s Exhibit 8. The trial court ruled that State’s Exhibit 6 was admissible because there was a substantial difference in its depiction of the crime scene.

Of these three photographs, we find only State’s Exhibit 8 is gruesome. However, even gruesome photographs are admissible within the trial court’s discretion if they help the jury understand the accompanying testimony. Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). In this case, we conclude that State’s Exhibit 8 helped the jury understand Mr. Chandler’s testimony of the crime scene and, for the reasons enumerated by the trial court, otherwise possessed probative value. Thus, although the photograph was gruesome, we find no abuse of discretion in admitting it.

Appellant next argues that it was error to permit Dr. Frank Peretti, the medical examiner who autopsied the victim, to be examined with respect to an autopsy photograph, marked for identification as State’s Exhibit 29, which was not admitted into evidence. The trial court permitted the state to show the photograph to Dr. Peretti and ask him if the condition of the victim’s shoulder area was consistent with a cutting wound. Appellant contends that he was prejudiced because the jury was impermissibly permitted to speculate as to the content of the photograph. This contention is without merit. At trial, appellant objected only to the admission of State’s Exhibit 29 into evidence. That objection was sustained by the trial court. The photograph was not shown to the jury. On this record, we find no prejudice demonstrated.

6. Motion to quash amended felony informations

The original felony information filed by the state on October 22, 1993, charged appellant with capital murder by premeditated and deliberated purpose. Section 5-10-101 (a)(4). The information was amended three times: first, on March 18, 1994, to charge appellant with capital murder by felony murder, section 5-10-101(a)(l); second, on March 21, 1994, to charge appellant with capital murder by premeditated and deliberated purpose, or, in the alternative, by felony murder; and, third, on March 23, 1994, to charge appellant, as an habitual offender, with capital murder by premeditated and deliberated purpose, or, in the alternative, by felony murder.

On March 28, 1994, appellant filed a motion to quash all felony informations filed against him. On March 29, 1994, prior to the commencement of trial, the trial court conducted a hearing wherein several motions were heard, including appellant’s motion to quash the felony informations, and denied the motion.

Appellant next argues that the amended informations violated Ark. Code Ann. § 16-85-407(b) (1987), which forbids amendment of an indictment or bill of particulars so as to change the nature of the crime charged. This argument is without merit. We have recently ruled that pretrial amendment of an information that charged capital murder on the basis of felony murder to add, as an alternative, the charge of capital murder on the basis of premeditated and deliberated purpose, does not change the nature of the crime charged in violation of section 16-85-407(b). Rucker, 320 Ark. 643, 899 S.W.2d 447. We have also held that amendment of an information that adds an allegation of habitual offender does not change the nature or degree of the crime. Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994).

Appellant next argues that “the affidavit legally required to accompany the amended information sufficient for the issuance of a new arrest warrant on the new charge was never filed.” We have held that Arkansas Code Annotated 16-85-302 (1987) does not require that an information be accompanied by an affidavit. Jacobs v. State, 317 Ark. 454, 878 S.W.2d 734 (1994). Appellant cites no authority to support his argument, thus there is no reason to address it further. Id.

Appellant next argues that there was no judicial review or leave of the trial court to amend the information, nor did the state file a bill of particulars as required by Ark. Code Ann. § 16-85-407(a) (1987). This argument is without merit. Section 16-85-407(a) provides that the state, with leave of court, may amend an indictment as to matters of form or may file a bill of particulars. We have held that an information that stated the accused was charged with murder committed in the course of kidnapping constituted a specific charge that was in itself a bill of particulars. Harmon v. State, 277 Ark. 265, 641 S.W.2d 21 (1982); see also Perkins v. State, 217 Ark. 252, 230 S.W.2d 1 (1950) (stating that an information may be sufficiently specific that a bill of particulars is not required). Applying that standard to the facts of the present case, we find that the information, as amended, was in itself a bill of particulars. The third amended information read:

I, DAN HARMON, PROSECUTING ATTORNEY WITHIN AND FOR THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF ARKANSAS, of which Hot Spring County is a part, in the name and by the authority of the State of Arkansas, do hereby amend the information and charge ERIC RANDALL NANCE with the crime of CAPITAL MURDER, A.C.A. 5-10-101, and Habitual Offender A.C.A. 5-4-501 committed as follows, to wit:
The said defendant, Eric Randall Nance, on or about the 11th day of October, 1993 in Hot Spring County, Arkansas did commit or attempt to commit rape and/or kidnapping and in the course of and in furtherance of the felony, or in the immediate flight therefrom, he caused the death of Julie Heath under circumstances manifesting extreme indifference to the value of human life or with the premeditated and deliberated purpose of causing the death of Julie Heath, he caused the death of Julie Heath, against the peace and dignity of the State of Arkansas.
The State of Arkansas also alleges that Eric Randall Nance is an Habitual Offender, A.C.A. 5-4-501, in that he has been found guilty of, or plead guilty to, four or more felonies, against the peace and dignity of the State of Arkansas.

On this record, as a result of the state’s filing of a sufficiently specific amended information, appellant demonstrates no prejudice.

Appellant next argues that it was error to deny his motion to quash the amended informations because, pursuant to Ark. Code Ann. § 16-85-410 (1987), a subsequent indictment suspends the prior indictment and quashes it. This argument is without merit. This court has previously considered section 16-85-410, as formerly codified at Ark. Stat. Ann. 43-1031, and stated that it “simply declares the effect of the pendency of another prosecution.” State v. Dimler, 251 Ark. 753, 756, 475 S.W.2d 152, 154 (1972) (quoting State v. Barkman, 7 Ark. 387, 388 (1846)). Section 16-85-410 is, therefore, inapplicable on the facts of this case, which involves a single prosecution. Cf. Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979), cert. denied, 447 U.S. 923 (1980) (holding the trial court erred by failing to quash two prior jury indictments, pursuant to Ark. Stat. Ann. § 43-1031, thereby forcing the accused to trial on a twenty-two count information that was identical to the pending grand jury indictments).

7. Rearraignment

Appellant next argues that the trial court erred in failing to arraign him and take his plea on the amended informations, in violation of Ark. Code Ann. §§ 16-85-701 and -702 (1987). Arraignment is defined as the reading of the indictment by the clerk to the defendant and asking him if he pleads guilty or not guilty to the charge. Section 16-85-701. Appellant does not contend that he would have changed his not-guilty plea had he been rearraigned on each amended information, nor does the record demonstrate that he was unaware of the nature and degree of the charge brought against him by the information, as amended. Therefore, we do not address this argument on appeal because the record fails to show that appellant raised it before the trial court or that prejudice is conclusively shown. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995).

8. Jury instruction

Appellant next argues that the trial court erred in instructing the jury that to sustain the charge of capital murder, the state must prove the elements of felony murder or of murder with premeditated and deliberated purpose. Appellant contends that the reading of the instruction in the disjunctive rendered it bad for uncertainty. This argument is without merit. This court has stated that:

[W]here but one offense is charged but the several modes provided by the statute by which it may be committed are charged in the disjunctive, the indictment is good. The reason is that the charge is based upon one offense, and the different modes of committing it provided in the statute are based upon the same transaction. . . .
In other words, the State in proving the offense might show that it was done [by either or both of the several modes charged] .... In either event it related to the same transaction and constituted but one offense.

Kirkpatrick v. State, 177 Ark. 1124, 1127, 9 S.W.2d 574, 575 (1928) (citation omitted). This reasoning is equally applicable to appellant’s objection to the form of the jury instruction on the alternative modes of committing capital murder. Section 5-10-101(a)(1) and (a)(4).

Appellant next argues that it was error to instruct the jury on both the premeditated and deliberated mode and the felony-murder mode of committing capital murder because, pursuant to section 16-85-410, the original information charging him with capital murder by premeditated and deliberated purpose, was suspended and quashed by the first amended information, which charged him with capital murder by felony murder, and, therefore, he was never charged with the crime for which he was convicted. This argument, which is based upon a premise that we determined to be erroneous in our discussion of point 6 above, is patently meritless.

Appellant next argues, without citation to authority, that it was error to instruct the jury as to capital murder by premeditated and deliberated purpose because there was insufficient evidence to support the instruction. Because the jury verdict states that appellant was found guilty of capital felony murder, appellant cannot demonstrate that the premeditated and deliberated purpose instruction prejudiced him. Therefore, we need not consider this argument further.

9. Bill of particulars

On March 23, 1994, appellant filed a demand for bill of particulars and specific disclosure. Appellant requested disclo-. sure of the state’s evidence of the underlying felonies charged, rape, attempted rape, kidnapping, and attempted kidnapping, including the names and addresses of prospective witnesses, written reports or statements of witnesses and experts, and the legal basis for the underlying-felony charge. On March 29, 1994, prior to the commencement of the trial on that date, the trial court heard and denied appellant’s demand for bill of particulars on the basis that appellant had been furnished all the information that the rules of discovery required.

Appellant next argues that the trial court erred in denying his demand for bill of particulars, which, he contends in a conclusory fashion, prejudiced his ability to prepare an effective defense. This argument is without merit.

The true function of the bill of particulars is to require the state to set forth the criminal act in detail and with sufficient certainty to apprise the defendant of the crime and enable him to prepare his defense. Edens v. State, 235 Ark. 996, 363 S.W.2d 923 (1963); Ark. Code Ann. § 16-85-301 (a) (1987). As we stated above, where the information is definite in specifying the offense being charged, as in this case, the charge itself constitutes a bill of particulars. Harmon, 277 Ark. 265, 641 S.W.2d 21. Further, even where no bill of particulars is filed, there is no prejudice to the accused on that account when the state complies with its discovery obligation. Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978). Appellant raises no argument on appeal that the state violated its discovery obligation under our rules of criminal procedure.

10. Motion to set aside judgment

On April 11, 1994, appellant filed a post-trial motion to set aside the original judgment filed on March 31, 1994. Appellant’s motion contended that the judgment was inconsistent with the jury verdict, which found appellant guilty of capital felony murder, because the trial court struck through the word “felony” on the face of the judgment so that, as edited, it pronounced appellant to be guilty of capital murder. Following a hearing on the motion to set aside the judgment, the trial court entered an amended judgment on April 11, 1994, that inserted the word “felony” in the amended judgment’s recitation of the jury verdict and the pronouncement of guilt. Appellant renews his argument on appeal.

We find no prejudice is demonstrated. The criminal statute under which appellant was charged and convicted denominates his crime as “capital murder,” felony murder being one of the several modes by which the crime may be committed. Section 5-10-101. Thus, the trial court’s action was not inconsistent with appellant’s conviction for the crime of capital murder, pursuant to the jury verdict, and did not modify the sentence imposed.

Citing Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984), appellant also contends that the trial court lacked jurisdiction to modify the judgment because he was placed in the custody of the Arkansas Department of Correction on March 31, 1994, to commence serving his sentence. This argument is merit-less. In Glick, this court held the trial court was without jurisdiction to modify the sentence after the appellant commence to serve the sentence. In the present case, however, the trial court did not modify appellant’s sentence. We have held that, after a notice of appeal is docketed and the record is filed in this court, the trial court loses jurisdiction, except for appointment of defense counsel. Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989). In this case, the latter of those two events occurred in October 1994, when the record was filed in this court.

Conclusion

Here, the jury unanimously found two aggravating circumstances existed beyond a reasonable doubt at the time of the commission of the capital murder, and no mitigating circumstances. We conclude that no erroneous finding of any aggravating circumstance with respect to the death penalty was found, and, therefore, we do not conduct a harmless-error review under Ark. Code Ann. § 5-4-603(d) (Repl. 1993). Further, in accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for prejudicial errors objected to by appellant but not argued on appeal, and no such errors were found.

Affirmed.


author: Robert L. Brown, Justice.

text:
    Allen Bruce WOODS, Jr. v. STATE of Arkansas
    CR 95-798
    916 S.W.2d 728
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996

      Christopher C. Mercer, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal is from a judgment of conviction on two counts of aggravated assault. Appellant Allen Bruce Woods urges two points for reversal. He first maintains that the trial court erred in permitting a Little Rock Police Detective to testify that holes in a house were made by shotgun blasts. Secondly, he urges that the trial court committed error in sentencing him because he gave no written reasons for a substantial departure from the sentencing grid, as required by State law. Neither point has merit, and we affirm the judgment.

The facts in this case are garnered from the testimony of the prosecution witnesses. Lillie McMullan Scroggins testified that she owns a two-story brick house on Fair Park Boulevard in Little Rock. On June 9, 1994, Tanyia McMullan, Lillie Scrog-gins’s daughter, and Tanyia’s college friend, April Sherrill, were at the house on Fair Park Boulevard. Lillie Scroggins was on a cordless telephone to Veronica McMullan, another daughter, when she observed a blue Cadillac pull up in her yard with five males in the car. Woods, whom she had seen before, came to the door and asked for Tanyia. She told him that Tanyia was not there. Woods returned to the car which left. Lillie Scroggins was still on the telephone with Veronica McMullan, and she told Veronica McMullan that Woods had come to the house. Lillie Scroggins then called 911, and Veronica McMullan came over to the house.

Lillie Scroggins further testified that Tanyia had returned to her house and was outside talking when the blue Cadillac returned. Tanyia started running toward the house. Lillie Scrog-gins saw Woods get out of the back of the car, open the trunk, get a gun, and put it together. She testified that another youth had a bat in his hand. She described the gun as long and black. As she was running, Tanyia tripped on the steps to the house, and Veronica McMullan and Lillie Scroggins pulled her into the house. The driver, who had the bat, began kicking the door. The women pushed a sofa behind the door, and he was unable to kick it open. Lillie Scroggins added that the boy with the bat hit the' windows and that she heard what sounded like a gun going off. She did not see anyone firing a gun. Tanyia called 911, and, later, a police officer arrived. Lillie Scroggins testified that the windows and screen in the dining room were broken, that the lining of the drapes was torn, and that glass was everywhere in the house. The front door was also cracked, and the sofa was torn. Woods was the only person that she saw with a gun.

Veronica McMullan, Tanyia McMullan, and April Sherrill basically confirmed Lillie Scroggins’s rendition of what happened. Veronica McMullan added that she actually saw Woods firing the shotgun at the house. Tanyia testified that Woods had either pointed the gun at her or the house.

Woods was initially charged with one count of a terroristic act and five counts of aggravated assault. The State initially nolle prossed one count of aggravated assault, and the trial court directed a verdict on two others. The terroristic act charge and the aggravated assault charges with regard to Lillie Scroggins and Tanyia McMullan went to the jury. The jury found Woods guilty of the two aggravated assault charges, which are Class D felonies, and acquitted Woods of committing a terroristic act. Following the sentencing phase, the jurors could not arrive at a verdict, and the jury was dismissed. The State and defendant agreed that the trial court would fix the sentence, and a presentence report was requested.

A sentencing hearing was held. According to the sentencing grid, Woods had a grade of level three for seriousness of the crime and zero for criminal history. Under the grid, commitment to a regional punishment facility with alternative sanctions was provided. Despite this, the trial court sentenced him to six years on each conviction and fined him $10,000 on each conviction, for a total sentence of 12 years and $20,000. Woods describes this sentence as 2 1/2 times what the presumptive sentence was. The exact presumptive sentence alluded to is not provided by Woods. (The statutory penalty for a Class D felony is up to six years. Ark. Code Ann. § 5-4-401 (Repl. 1993).) On the day that the judgment and commitment form was entered, the trial court filed a standardized Departure Form and circled the numbers beside the following two aggravating circumstances as reasons for enhancing punishment more than 5 percent above the sentencing grid:

2. Offender knew victim vulnerable due to extreme youth, advanced age, disability or ill health.
8. Offense was committed in a manner that exposed risk of injury to others.

Woods first contends that it was reversible error under Ark. R. Crim. P. 17.1 for the State not to disclose the anticipated shotgun testimony by Detective Lawrence Welborn prior to trial. Woods had filed a motion for discovery and, in part, requested the names, addresses, and the substance of their testimony. The response by the State had been that it has an “open file” policy. Detective Welborn’s name was in the file, but defense counsel had not talked to him.

Prior to the detective’s testimony at trial, defense counsel objected to any “physical evidence” of the shotgun blast. The State answered that it had no physical evidence to introduce and this colloquy ensued:

THE COURT: All right, sir. Is the State planning on producing any physical evidence that was not given to the Defense?
STATE: No physical evidence, Your Honor.
THE COURT: Okay. You did give him the name of this witness in advance?
STATE: Yes. sir, I did.
THE COURT: What’s your objection, sir?
DEFENSE COUNSEL: Well, I’ll probably cross examine him. If he’s going to testify to gunshot marks and things then it would just be his memory. Do you have enough memory since you’re not intending to produce any physical evidence?
STATE: Your Honor, with all due respect, there is nothing in the police report about the gunshot bullet holes; however, because I spoke with this officer beforehand and discussed his observations with him, he told me that he did see them.
THE COURT: Mr. Mercer, if you were given this witness’ name in advance of trial, what he saw, heard and experienced most certainly is going to be admissible.
DEFENSE COUNSEL: All right.

Direct examination of Detective Welborn by the State followed, and he testified that he was trained at the State Police Academy on the use of a shotgun. He stated that he was trained on the size of the barrel and the pattern a shotgun produces with different ammunition. He added that he was familiar with the type of hole that a shotgun makes when fired and that he had seen the results of over 100 shotgun blasts. He opined that the holes at the McMullan house were shotgun holes. No objection was made to this testimony by defense counsel.

The State argues that an objection to Detective Welborn’s opinion testimony was not made and, thus, the issue was not preserved for appeal. We agree. Defense counsel made his objection on the basis of physical evidence of the shotgun blasts, which would encompass embedded pellets retrieved from the house and the like. No objection was made to the detective’s giving his opinion of what made the holes in the house. Indeed, defense counsel stated that he would probably cross-examine the detective about his memory concerning “gunshot marks and things.” An objection to physical evidence is different from an objection to observations and opinions. We have held numerous times that a defendant cannot change his argument on appeal. See, e.g., Spears v. State, 321 Ark. 504, 905 S.W.2d 828 (1995); Smith v. State, 318 Ark. 142, 883 S.W.2d 837 (1994). We, accordingly will not address the merits of this point.

Woods next contends that the trial court erred in not following statutory procedure in departing from the sentencing grid in his sentence. The pertinent parts of the statute follow:

(a)(1) Effective January 1, 1994, the trial court may deviate within a five percent (5%) range below or above the presumptive sentence without providing a written justification.
(2) (A) For the trial court to depart beyond the five percent (5%) range below or above the presumptive sentence, written justification shall be given for the most serious offense if the sentences are run concurrently or on each offense if the sentences are run consecutively, specifying the reasons for such departure.
(3) A copy of the written reasons shall be attached to the commitment and another copy forwarded to the Arkansas Sentencing Commission.
(c)(1) When a sentence is imposed after January 1, 1994, which is outside the presumptive range and which is not accompanied by written reasons for the departure, an offender shall be considered for any discretionary release applicable under the law as if he had received the presumptive sentence, and the transfer or releasing authority may review, grant, or deny transfer or release based on any eligibility established by the presumptive sentence term.

Ark. Code Ann. §§ 16-90-804(a)(1), (a)(2)(A), (a)(3), and (c)(1) (Supp. 1995). Section 16-90-804(d)(2) continues with a list of aggravating factors that might cause an upward departure from the presumptive sentence, including the two circumstances cited by the trial court in the instant case.

We agree with the State’s contention that any defect in the Departure Form should have first been raised to the trial court for consideration and possible correction. The Departure Form is in the record and according to § 16-90-804(a)(3) was required to be attached to the judgment and commitment form. We have no doubt that defense counsel had either received the form or easily could have availed himself of it and, hence, had ample time to broach any deficiency to the trial court.

Nonetheless, we choose to address the merits of the issue raised because of its importance to the bench and bar. The trial court in this case circled the numbers of the apposite aggravating circumstances rather than wrote out reasons for the enhancement. We conclude that the General Assembly did not intend by § 16-90-804 that the trial court necessarily write out the reasons for departure in longhand but only that the reasons be written. Here, they were in writing, and the trial court circled the numbers of those aggravating circumstances that comprised its justifications. We hold that this procedure was appropriate under the statute and did not constitute error.

Affirmed.

       Lillie Scroggins testified that she had a disability which necessitated her use of a walker but that she still assisted Tanyia in getting into the house.

       It is somewhat unclear whether the trial court circled number 1 or number 2, but it appears the court circled number 2.

       Substance of testimony by witnesses is not required under Rule 17.1. Holloway v. State, 310 Ark. 473, 837 S.W.2d 464 (1992); Cox v. State, 36 Ark. App. 173, 820 S.W.2d 471 (1991). We do not reach this issue, however, for reasons stated in this opinion.


text:
    Joe GUINN v. STATE of Arkansas
    CR 96-209
    917 S.W.2d 529
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996

      Stephen E. Kirk, for appellant.
    No response.
   Per Curiam.

Joe Guinn asks for a rule on the clerk. He alleges that we should grant the rule because he was misled by a prosecuting attorney and a member of a Drug Task Force, and, as a result, did not timely perfect his appeal. We deny the motion.

According to movant’s affidavit, the judgment of conviction was entered on February 24, 1995, he filed a motion for a new trial on April 7, 1995, and he filed a pro se Notice of Appeal on May 5, 1995.

A motion for a new trial must be filed within ten days after the entry of the judgment, Ark. R. Civ. P. 59, and a notice of appeal must be taken within thirty days from the entry of the judgment, Ark. R. App. P. 4(a). Here, the motion for a new trial was not filed within ten days and is of no effect, and the notice of appeal was not filed within thirty days. Thus, on the surface, the clerk correctly refused to allow appellant to file the record in this case.

Movant alleges, however, that the record was tendered late because he was misled by judicial district officials. However, the allegation is not material to the failure to timely file the notice of appeal. He alleges that he was misled “[s]oon after filing my Notice of Appeal.” Consequently, even if he were misled, it occurred after he filed his notice of appeal; therefore, it had nothing to do with the untimely filing of his notice of appeal. We deny the motion for a rule on the clerk.


text:
    Michael Thomas HAMILTON v. STATE of Arkansas
    CR 95-1300
    918 S.W.2d 113
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996

      Mac J. Carder, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Per Curiam.

In 1993 appellant Michael Thomas Hamilton was found guilty of manslaughter and sentenced to a term of ten years imprisonment. We affirmed. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995). The mandate of this court was issued on May 19, 1995. On August 1, 1995, seventy-four days after the mandate was issued, appellant filed in the trial court a petition for reduction of sentence pursuant to Ark. Code Ann. § 16-90-111 (b) (1) (Supp. 1993). The petition was denied, and the record has been lodged on appeal. The appellee seeks by motion to have the appeal dismissed on the ground that the petition filed in the trial court was untimely.

The motion is granted and the appeal dismissed as it is clear that the appellant could not prevail on appeal. This court has consistently held that an appeal of the denial of post-conviction relief will be dismissed where it is clear that the appeal is wholly without merit. Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Criminal Procedure Rule 37.2 (b) provides in pertinent part that all grounds for post-conviction relief from a sentence imposed by a circuit court must be raised in a petition under Rule 37. Arkansas Code Annotated § 16-90-111 (Supp. 1993) is in conflict with Criminal Procedure Rule 37 in that it permits claims for post-conviction relief to be raised under the statute. The statute permits a circuit court to reduce a sentence within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment of conviction. In contrast, Criminal Procedure Rule 37.2 (c) provides that a petition under the rule is untimely if not filed within sixty days of the date the mandate was issued by the appellate court affirming the judgment.

Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved in favor of our rules. Reed v. State, 317 Ark. 286, 878 S.W.2d 378 (1994), citing Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994); see also Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (July 10, 1995; motion requesting publication of Per Curiam opinion granted September 11, 1995). The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on a untimely petition for post-conviction relief. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). As appellant did not file his petition for post-conviction relief within the sixty-day period set by Rule 37 to file such a petition, the petition was untimely. Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995).

Motion granted; appeal dismissed.


text:
    George JORDAN v. STATE of Arkansas
    CR 96-228
    916 S.W.2d 732
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996

      Henry C. Morris, for appellant.
    No response.
   Per Curiam.

The appellant, George Jordan, has filed a motion for rule on the clerk. His attorney, Henry C. Morris, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Charles PATTON v. STATE of Arkansas
    CR 95-230
    917 S.W.2d 529
    Supreme Court of Arkansas
    Opinion delivered March 4, 1996

      John Frank Gibson, for appellant.
    No response.
   Per Curiam.

On August 5, 1993, Charles Patton was found guilty by a jury of three counts of delivery of a controlled substance and was sentenced to ten years imprisonment on each count. Patton, who was represented at trial by his retained attorney, John Frank Gibson, Jr., filed a timely pro se notice of appeal. Gibson lodged the record on appeal in the Arkansas Court of Appeals on March 7, 1994, but the appeal (CACR 94-570) was dismissed on February 1, 1995, on the basis that Gibson had failed to file the appellant’s brief. On February 28, 1996, the appeal was reinstated by the court of appeals in a per curiam order.

Patton had also been found guilty in a separate proceeding of a fourth count of delivery of a controlled substance. Judgment in that case was entered January 5, 1994. On March 9, 1995, Gibson tendered the record to this court in case CR 95-230 with a motion for rule on the clerk which was necessary because the record was not filed in a timely manner. On April 3, 1995, we denied the motion for rule on the clerk but stated that if Gibson would concede that the untimeliness of the record filing was his fault within thirty days, or if other good cause was shown, the motion would be granted. Patton v. State, 320 Ark. 271, 895 S.W.2d 531 (1995) (per curiam). With respect to the conviction on three counts of delivery of a controlled substance, we stated that we could not grant relief because the court of appeals had dismissed the appeal in CACR 94-570. We noted that Gibson had erroneously merged the two cases.

On April 10, 1995, Gibson filed a motion in CACR 94-570 (or CR 95-230) in which he again confused the two appeals. He admitted fault for not filing a brief. However, the sole issue before this court was counsel’s conduct in the appeal of the separate January 5,. 1994 judgment. On May 15, 1995, the motion was denied. Patton v. State, 320 Ark. 513, 898 S.W.2d 446 (1995) (per curiam). In that order, we again gave Gibson 30 days to concede fault in failing to timely file the record in this case.

Gibson did not file another motion for rule on the clerk in this court with respect to the January 5, 1994 judgment until February 6, 1996 — almost nine months after our second per curiam order. Gibson admitted fault in failing to file the record on time in that motion. While we consider the delay in filing the motion to be extreme, we consider such an error admittedly made by counsel for a criminal defendant to be good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Glaze, J., not participating.