author: Robert L. Brown, Justice.

text:
    Joshua RAGER, by His Next Friend Marjorie Rager; Matthew Rager, Jr.; Yolanda Rager; and Marjorie Rager v. Chandra Rager TURLEY, Administratrix
    99-1465
    27 S.W.3d 729
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000
    [Petition for rehearing denied November 9, 2000.]

      James Dunham, for appellant Joshua Rager.

      John Van Cleef, for appellants Cory Rager, Matthew Rager, Jr., Yolanda Rager, and Marjorie Rager.

      Mobley Law Firm, by: Jfff Mobley and Skelton & Steuber, P.A., by: Kristin Steuber, for appellee.
   Robert L. Brown, Justice.

At issue in this case is the approval and distribution of a wrongful-death settlement in probate court pursuant to Ark. Code Ann. § 16-62-102(g) (Supp. 1999). The appellants are certain heirs and beneficiaries of the decedent, Thomas H. Rager, and an alleged illegitimate son of the decedent. The appealing beneficiaries and their relationship to the decedent are Cory Rager, a minor child; Matthew Rager, Jr., a brother; Yolanda Rager (now Pigeon), a sister; and Marjorie Rager, the mother. These appellant-beneficiaries appeal the fairness and reasonableness of the settlement. Joshua Rager, by his adoptive parent who is also the decedents mother, Marjorie Rager, appeals the decision of the probate judge to deny his participation in the wrongful-death settlement. The appellee is Chandra Rager (now Turley), who is the administratrix of the decedent’s estate.

At issue in this appeal are three points: (1) the fairness and reasonableness of the wrongful-death settlement, which includes the question of the exclusion of Joshua Rager from participation; (2) the propriety of paying a $3,000 executor’s fee from the settlement proceeds; and (3) the necessity for an evidentiary hearing regarding distribution of the settlement proceeds. We reverse and remand the probate court’s decision with regard to Joshua, with directions that his claim that he is the illegitimate son of the decedent be transferred to the Pope County Chancery Court for a determination of paternity. We also reverse payment of the executor’s fee from settlement proceeds. Because the reasonableness and fairness as well as distribution of the settlement hinges on Joshua’s status as a child, we do not reach those issues at this time.

On August 15, 1994, Thomas H. Rager died intestate from injuries sustained in a vehicular accident, while driving an eighteen-wheeler truck for his employer, Tyson Foods, Inc. On August 18, 1994, his daughter Chandra Rager (now Turley), who was age nineteen, was appointed administratrix of his estate. His surviving beneficiaries allegedly included, in addition to the appellants, a second brother, Eugene Rager, and two children by his first marriage, Chandra Rager Turley (the administratrix) and Tommy Joe Rager. On August 19, 1994, Matthew Rager, Jr., objected to Turley’s appointment as administratrix and petitioned for his own appointment. The probate court denied the petition.

In 1996, Joshua’s natural mother died, and Marjorie Rager adopted him.

On August 29, 1997, Turley, as administratrix, filed an amended complaint in Pope County Circuit Court pursuant to the Arkansas Wrongful Death Act, on behalf of herself and all statutory beneficiaries in which she alleged that Razorback Disposal, Inc. and Thomas Gregory Hill wrongfully caused the death of the decedent by their gross negligence and recklessness. The action did not name Joshua as a beneficiary.

With the assistance of legal counsel, Turley, as administratrix, negotiated a settlement in the wrongful-death action. On January 6, 1998, she petitioned the probate court for approval of the settlement, as required by § 16-62-102(g), and for distribution of the settlement amount in fixed amounts to the beneficiaries. On January 8, 1998, appellants Marjorie Rager, Matthew M. Rager, Jr., Yolanda Pigeon, and Deborah Rager (now Matheson) as guardian of Cory C. Rager, filed their objection to the proposed settlement and distribution. On January 14, 1998, Turley filed a second petition for approval of the settlement, which would be funded by the purchase of life insurance annuity contracts.

On March 11, 1998, Joshua filed a motion to intervene in the petition for probate court approval of the settlement as a wrongful-death beneficiary and filed a claim to participate in the distribution. He was permitted by the probate court to intervene on March 12, 1998. On March 17, 1998, Turley, as administratrix, filed an objection to Joshua’s intervention.

On April 3, 1998, the probate court held a hearing to decide whether Joshua had the right to participate in the negotiated settlement and whether the settlement itself was reasonable. The probate court began by considering the reasonableness of the settlement and said that it would decide collateral issues later. Turley testified in favor of the settlement and distribution while Deborah Rager, Matthew Rager, and Marjorie Rager testified against it. At one point, Joshua’s attorney objected to questions relating to Joshua’s paternity which had been posed by Turley’s attorney. The probate court gave this response:

I think that’s — I think that’s right. I think just based on the fact that we are not going into that at this time, I’ll sustain the objection. We will take that up at a later time.

The probate court did not receive or consider testimony regarding specific distribution to beneficiaries and said, “Well, I think that’s going to hinge on what my decision is today.”

On April 7, 1998, Joshua filed a brief regarding whether Arkansas law prohibited his participation in the division of the proceeds of any wrongful-death claim related to the decedent’s death. He claimed that Arkansas statutes and caselaw did not foreclose his participation. For purposes of his brief, he assumed the following to be true:

• Joshua is the biological child of the decedent.
• Joshua’s mother was never married to the decedent.
• The decedent never legitimized Joshua by paternity action or otherwise.
• Joshua filed no claim against this estate within one hundred and eighty days (180 days) of the death of the decedent.
• Joshua’s date of birth is February 1, 1988.
• No notice was given to Joshua of the administration of the estate of the decedent.

On June 18, 1998, the probate court sent a letter opinion to counsel for the parties in which it concluded that because Joshua had filed no claim against the estate within 180 days of the decedent’s death, as required by Ark. Code Ann. § 28-9-209 (d) (1987), he was not entitled to share in the settlement proceeds. As a result, the court dismissed Joshua’s petition to intervene. The court further concluded that the setdement was reasonable and approved it. On August 5, 1998, the probate court memorialized its letter opinion in a final order and cited Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988), as additional support for its decision. In that order, the court also approved distribution of the settlement to the beneficiaries but stayed the order pending appeal.

The appellants appealed the final order to the court of appeals, and in a plurality decision that court, for varying reasons, affirmed the probate court’s decision to deny Joshua the right to intervene in the wrongful-death settlement. See Rager v. Turley, 68 Ark. App. 187, 6 S.W.3d 113 (1999) (on the issue of Joshua’s intervention, two judges of the court of appeals agreed with the lead opinion, two judges concurred with the result, and two judges dissented). This court granted appellants’ petition to review on January 27, 2000.

When this court grants a petition for review of a case decided by the court of appeals, we review the case as if the appeal was originally filed in this court. Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998). We first address whether § 28-9-209 (d) of the Probate Code controls the issue of Joshua’s intervention in the approval of the wrongful-death settlement. That subsection fixes a limitations period and reads:

(d) An illegitimate child or his descendants may inherit real or personal property in the same manner as a legitimate child from the child’s mother or her blood kindred. The child may inherit real or personal property from his father or from his father’s blood kindred provided that at least one (1) of the following conditions is satisfied and an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within one hundred eighty (180) days of the death of the fatherf.]

Ark. Code Ann. § 28-9-209(d) (1987).

It is clear to this court, as it was to the court of appeals, that § 28-9-209(d) does not apply to claims to share in a wrongful-death settlement. By its terms, this subsection applies to a “claim asserted against the estate of the father” and not to claims to participate in wrongful-death settlement. Nor does the case of Boatman v. Dawkins, supra, which was relied on by the probate court, persuade us otherwise. In Dawkins, we affirmed the application of the 180-day limitations period to an illegitimate child’s claim against her father’s estate. Again, that is what § 28-9-209 (d) contemplates — claims against a father’s estate as opposed to claims against a wrong-fol-death settlement where a petition to approve the settlement may occur more than three years after the father’s death. We hold that the probate court erred in applying § 28-9-209 (d) to Joshua’s motion to intervene and in denying his request.

We turn then to the Wrongful Death Act and specifically to subsection (d) of that Act. See Ark. Code Ann. § 16-62-102(d) (Supp. 1999). Subsection (d) reads:

The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.

Thus, to qualify as a statutory beneficiary under this Act, Joshua must be a child of the decedent. Without that status, he has no standing to intervene in probate court regarding the wrongful-death settlement.

Our reading of the record in this case convinces us that the probate court held the issue of paternity relating to Joshua in abeyance until it first resolved the limitations issue. Having decided that the 180-day cutoff period did apply, the probate court apparently concluded that it was unnecessary to determine the paternity issue. The probate court, however, could not have resolved the paternity question in any event because it lacked the subject-matter jurisdiction to do. Our recent pronouncement on this matter is clear:

The probate court has jurisdiction over the administration, settlement, and distribution of estates of decedents and the determination of heirship. See Ark. Code Ann. § 28-1-104 (1987). Chancery court, however, has concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity. Ark. Code Ann. § 9-10-101 (Repl. 1993); Ark. Code Ann. § 16-13-304(b) (Repl. 1994); Ark. Const, amend. 67. In the instant case, the sole purpose of the action is to establish paternity. Consequently, the probate court was without jurisdiction to hear the matter.

In Re Estate of F.C., Deceased, 321 Ark. 191, 193, 900 S.W.2d 200, 201 (1995).

Joshua argues that we held contrary to this principle in Standridge v. Standridge, 304 Ark. 364, 803 S.W.2d 496 (1991). That, however, is incorrect. The Standridge case did involve the determination of beneficiary status for a child in connection with the approval of a wrongful-death settlement in probate court. But that decision did not require a decision relating to paternity. Rather, the decision of the probate court in Standridge in deciding whether the minor son (Johnny Thacker) was a beneficiary centered on whether the deceased husband of Johnny’s mother (Standridge) stood in loco parentis to Johnny. We stated that there was no evidence in the record which indicated that Standridge intended to assume the duties and benefits associated with becoming Johnny’s father and held that Johnny was not entitled to beneficiary status in the wrongful-death settlement.

Determining whether a decedent stood in loco parentis to a minor child is a far cry from deciding paternity. We hold that the probate court is without subject-matter jurisdiction to decide the paternity issue relating to Joshua.

That leaves us then with the issue of whether Joshua’s claim as a child for purposes of the wrongful-death settlement is barred for some reason other than the 180-day limitations period. Stated differently, has Joshua’s delay in asserting his rights as a child or having the issue of paternity decided foreclosed him from participating in this settlement? We think not.

Joshua was born on February 1, 1988, which means he was six at the time of the decedent’s death and eight when his natural mother died and he was adopted by his alleged grandmother, Marjorie Rager, in 1996. He was ten when he moved to intervene to share in the settlement proceeds on March 11, 1998. It is true that no one on Joshua’s behalf has assumed the burden of resolving the paternity issue. But it is also true that no steps were taken by Turley, as administratrix, to resolve the issue, though she became aware of Joshua’s claim to be a beneficiary as early as March 11, 1998, if not before. There is also the point that the probate court apparently reserved a decision on paternity until it could decide the limitations issue, thus leading Joshua to believe that the paternity issue could be decided in probate court after the limitations hurdle was jumped. As already held in this opinion, the probate court had no subject-matter jurisdiction to decide paternity.

Because of these facts, we conclude that Joshua is entitled to have the paternity issue decided and that he may share in the settlement proceeds if that decision is favorable to him. We, therefore, reverse the probate court’s final order of approval and distribution and remand the case to that court. We further direct the probate court to transfer the matter of the decedent’s paternity relating to Joshua to the Pope County Chancery Court for resolution. See O’Fallon v. O’Fallon, 335 Ark. 229, 980 S.W.2d 246 (1998); Walker v. First Commercial Bank, N.A., 317 Ark. 617, 880 S.W.2d 316 (1994). Further, it is clear that the probate court erred in awarding executor fees from the wrongful-death settlement proceeds. The Wrongful Death Act provides that no debts of a decedent’s estate shall be paid from a wrongful-death recovery. Ark. Code Ann. § 16-62-102(e) (Supp. 1999); see also Douglas v. Holbert, 335 Ark. 305, 983 S.W.2d 392 (1998). We reverse the probate court on that point.

Because the status of Joshua is as yet undetermined, we do not know whether he will share in the wrongful-death settlement. When Joshua’s status is resolved, we direct that the shares of the beneficiaries be fixed by the probate court, taking into consideration the best interests of all beneficiaries, as required by Ark. Code Ann. § 16-62-102(g) and (h) (Supp. 1999). See also Douglas v. Holbert, supra (apportionment hearing ordered to be held in which all statutory beneficiaries would participate and present evidence of their respective rights to the wrongful-death proceeds).

Reversed and remanded.

       Cory Rager is referred to at various times throughout the record as Corey Rager, Cory C. Rager, Cory Channing, and Cory Channing Rager.


source: Caselaw Access Project

author: Annabelle Clinton Imber, Justice.

license: Public Domain

text:
    William Otis SMITH v. The Hon. John B. PLEGGE, Pulaski County Circuit Court
    CR 99-1347
    27 S.W.3d 402
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000

      William R. Simpson, Jr., Public Defender, by: Donald L. Thompson, Jr., Deputy Public Defender, for appellant.

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   Annabelle Clinton Imber, Justice.

Petitioner William Otis Smith seeks a writ of prohibition against Respondent Honorable John B. Plegge and the Pulaski County Circuit Court to prevent a trial on a charge of second-degree battery. Respondent trial court denied Mr. Smith’s motion to dismiss the charge on speedy-trial grounds, and he now seeks a writ of prohibition in this court pursuant to Ark. R. Crim. P. 28.1(d). We must deny the writ because the abstract of the record does not show that the writ is clearly warranted.

On October 3, 1997, Mr. Smith was arrested at the Pulaski County Detention Center (the county jail) for second-degree battery after an alleged altercation with Sergeant Michael Yates of the Pulaski County Sheriff’s Department. At that time, Mr. Smith was incarcerated in the county jail on an unrelated prior offense. The Arkansas Arrest/Disposition Report from the Arkansas Crime Information Center (ACIC) listed Mr. Smith’s address as 3201 West Roosevelt Road in Little Rock, which is the street address for the county jail. The report also stated that his nearest relative was Stella Young, who lived at “629 Cheryl” in Jacksonville.

On November 6, 1997, the State filed its felony information against Mr. Smith and set out Mr. Smith’s address as 3201 West Roosevelt. Following the issuance of a bench warrant, Mr. Smith was arrested at his probation officer’s office on December 10, 1997. Later that same day, he was released on $10,000 bond, and the bond reflected his address to be “629 Cherly’s Cir.” in Jacksonville. The bond, however, was not filed in the circuit court until after the circuit court mailed its notice on December 11, 1997, to Mr. Smith at the West Roosevelt street address, directing him to appear for plea and arraignment in circuit court on December 22, 1997. The letter was subsequently returned to the circuit court, with the words “Return to Sender, Attempted, Not Known” stamped on the envelope. Mr. Smith did not appear at the hearing on December 22, 1997.

On September 23, 1998, Mr. Smith was arrested again. This time the ACIC Arkansas Arrest/Disposition Report listed his address as “629 Cheryl Ln.” in Jacksonville, and Mr. Smith appeared, as notified, at the hearing on October 12, 1998. On that same day, he filed a motion to dismiss in which he contended that his right to a speedy trial under Ark. R. Crim P. 28.2 had been violated, because twelve months had passed since he was arrested on October 3, 1997, for second-degree battery. The court held a hearing on October 26, 1998, and denied the motion to dismiss after finding that two days remained in which to try the case under the speedy-trial rules. The trial court then offered to set the case for trial within two days unless Mr. Smith wanted a continuance. Mr. Smith chose the latter option, and the trial court granted him a continuance. Almost one year later, on October 18, 1999, Mr. Smith again moved to dismiss the case for a violation of our speedy-trial rules. The circuit court again denied the motion and set the case for jury trial on October 20, 1999. On that day, the trial court granted Mr. Smith’s request for another continuance pending the outcome of this original action seeking a writ of prohibition against the circuit court.

It is undisputed that there are 747 days between October 3, 1997 (the date of Mr. Smith’s arrest) and October 20, 1999. This exceeds the twelve-month requirement of Ark. R. Crim P. 28.1 and 28.2 by 382 days. Of those days, Mr. Smith does not dispute that 371 days from October 12, 1998, until October 20, 1999, were excludable for reasons not at issue here. This leaves eleven days over the twelve-month limit. The essence of Mr. Smith’s argument in this original action is that the State has failed to prove that the eleven-day period of delay between December 11 and December 22, 1997, resulted from his absence or availability. The State argued below, and the trial court agreed, that those eleven days were excludable pursuant to Ark. R. Crim. P. 28.3(e), because Mr. Smith was unavailable and his whereabouts were unknown.

Both parties agree that the speedy-trial period began to run on the date of Mr. Smith’s arrest on October 3, 1997. Ark. R. Crim. P. 28.1(c) and 28.2(a) (2000). Those rules require that any defendant in circuit court who is not brought to trial within twelve months from the date of his arrest is entitled to have the charges dismissed with an absolute bar to prosecution. Hicks v. State, 340 Ark. 605, 12 S.W.3d 219 (2000). Here, Mr. Smith presented a prima facieczse of a speedy-trial violation based upon the fact that he was not brought to trial on or before October 3, 1998. When a defendant presents such a prima facie case to the circuit court, the burden of proof shifts to the State to explain the delay. Id.; Holbert v. Arkansas County Circuit Court, 339 Ark. 462, 5 S.W.3d 474 (1999); Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998). The State explains the delay by arguing that eleven days of the twelve-month period were excludable pursuant to Ark. R. Crim P. 28.3(e) because Mr. Smith’s whereabouts were unknown, thus making him unavailable for trial. Specifically, the State says that the court’s notice of the December 22, 1997 hearing was mailed to the first address provided by Mr. Smith before notice of a second address was provided to the court. Accordingly, the State contends that the eleven-day period between December 11, 1997, when the court sent notice of the hearing, and December 22, 1997, when Mr. Smith failed to appear, is excludable.

The State has a duty to make a diligent, good-faith effort to bring an accused to trial. Holbert v. Arkansas County Circuit Court, supra; Caulkins v. Crabtree, 319 Ark. 686, 894 S.W.2d 138 (1995). The burden is on the State to prove that it has exercised such due diligence. Brown v. State, 330 Ark. 239, 952 S.W.2d 673 (1997); Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994). Mr. Smith asserts that the State has not met its burden of proof in this case. In support of that assertion, he contends that the State knew the court’s December 11, 1997 notice did not reach him at the jail because the letter was returned to the court. He also contends that the bond filed with the circuit court on December 12, 1997, disclosed Mr. Smith’s address and phone number in Jacksonville.

With regard to his first argument, Mr. Smith states that the December 11, 1997 letter giving him notice of the December 22 hearing date was returned to the circuit court on December 17, 1997, as evidenced by a copy of the envelope, which is contained in the record. We disagree. The handwritten date “12/17/97” does appear on the face of the envelope. However, nothing on the envelope or otherwise in the record indicates what that date signifies or even who wrote it. A party seeking a writ of prohibition must produce a record sufficient to show that the writ is clearly warranted. McFarland v. Lindsey, 338 Ark. 588, 2 S.W.3d 48 (1999). From the record before us, we can only say that the letter was returned to the sender. Thus, we -cannot determine whether the court should have been put on notice prior to the December 22, 1997 hearing date that Mr. Smith had not received notice of the hearing.

Mr. Smith also contends that the circuit court should have realized when the bond was filed on December 12, 1997, that the letter mailed on the previous day would not be delivered to Mr. Smith at the jail. The bond showed that Mr. Smith was released from jail on December 10, 1997, and that he had given his address as “629 Cherly’s Cir” in Jacksonville. However, the bond had not been filed at the time the circuit court sent the hearing notice to Mr. Smith on December 11, 1997. On that date, the abstract reflects only two documents that listed an address for Mr. Smith. The ACIC Arkansas Arrest/Disposition Report for the December 10 arrest listed Mr. Smith’s address as “629 Shuril Lane” in Little Rock and his nearest relative’s address as “117 Redmon Road” in Jacksonville. With regard to those addresses, Mr. Smith does not argue that the State should have sent notice to him at either of those addresses. The ACIC Arkansas Arrest/Disposition Report for the October 3 arrest listed Mr. Smith’s address as 3201 West Roosevelt Road in Little Rock. The State argues that it relied in good faith on the address contained in that document. Based on the abstract of the record before us, the circuit court only had one address for Mr. Smith on December 11, 1997, which is precisely where the court sent the notice. The bond, which showed a Jacksonville address for Mr. Smith, was not filed until the day after the notice had been sent. It was only when Mr. Smith failed to appear at the hearing on December 22, 1997, that the court had reason to know that he had not received notice of the hearing. Under these circumstances, we cannot say the State failed to prove that it exercised due diligence in bringing Mr. Smith to trial. We therefore hold that the State met its burden of explaining the eleven-day period of delay by showing that Mr. Smith’s whereabouts were unknown during that time, and he was, thus, unavailable. Osborn v. State, 340 Ark. 444, 11 S.W.3d 528 (2000). This eleven-day period is a far cry from the two-and-one-half-year period during which the State failed to check the available court records or otherwise demonstrate any diligence in locating the accused in Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985). We will grant a writ of prohibition only when it is clearly warranted. Brown v. State, supra. Here, it is not.

The writ of prohibition is denied.

       Prohibition lies to the circuit court and not to the individual judge. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). Accordingly, we will treat the petition as one against the circuit court. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).

       The ACIC Arkansas Arrest/Disposition Report for the December 10 arrest listed Mr. Smith’s address as “629 Shuril Lane” in Little Rock. It also stated that his nearest relative was his wife, Deloris Smith, who lived at “117 Redmon Road” in Jacksonville.

       The State does not contend that any period after December 22, 1997, is excludable due to Mr. Smith’s unavailability.

       The record is confined to that which is abstracted. McFarland v. Lindsey, supra.


author: Ray Thornton, Justice.

text:
    Nathan ELIOTT v. STATE of Arkansas
    CR 00-309
    27 S.W.3d 432
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000

      Steven M. Harper, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

This appeal comes from Nathan Eliott’s second conviction of two counts of rape of his stepdaughter, C.E., who was twelve and thirteen years old at the time of the crimes. While awaiting his trial in this case, appellant escaped from the Van Burén County Jail, remaining at large for approximately one month before his apprehension. As a result of that incident, appellant pleaded guilty to second-degree escape, and a judgment and commitment order reflecting the escape conviction was entered into evidence at trial. A transcript of a taped phone conversation between appellant and the victim was also admitted into evidence. On appeal, appellant argues that the trial court erred in admitting the order and the transcript. We affirm the trial court’s rulings.

Ms. Alma Eliott, appellant’s former wife, testified that she noticed a change in her daughter’s behavior in early 1996. As a result, Ms. Eliott bought a tape recorder and attached it to her home telephone system. In May or June 1996, she retrieved a recorded conversation between C.E. and appellant in which appellant said, “Yes, I want to have sex with you.” C.E. and appellant discussed their prior sex acts. Ms. Eliott later confronted her daughter about the recording, and the child initially denied it. Ms. Eliott then turned the tape over to law enforcement officials.

C.E., sixteen years old at the time of trial, testified that appellant raped her in January 1996 when she was twelve and again in April 1996 when she was thirteen. She further testified that appellant threatened her, slapped her in the face, and threatened to kill the entire family if she told anyone. She also testified that she had the phone conversation, which her mother recorded, with appellant when he worked in Texas for two weeks on an oil job.

Following the introduction of evidence to establish that appellant raped C.E., the state called Officer James Paget, who testified that appellant escaped from the Van Burén County Jail in June 1997 while awaiting trial in this matter. After his capture, appellant was convicted of second-degree escape and sentenced to seventy-two months for the offense. A certified copy of the judgment and commitment order for appellant’s escape was admitted into evidence. Acting pro se, appellant objected, asserting that the introduction of the conviction was “just like before on [his] last jury trial, bringing up prior convictions.” The prosecutor responded by noting that the conviction of escape reflected a consciousness of guilt of the rape offenses. The trial court overruled the objection and allowed the admissibility of the escape order.

Appellant first argues that the trial court erred because the escape judgment and commitment order was improperly admitted as character evidence under Ark. R. Evid. 404(b) (2000). Arkansas Rule of Evidence 404(b) states:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Id. We have noted that the list of exceptions expressed by 404(b) is not an exclusive list, but rather is exemplary of the purposes for which otherwise inadmissible evidence of other crimes, wrongs, or acts would be admissible. Thrash v. State, 291 Ark. 575, 726 S.W.2d 283 (1987); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). Such evidence must, however, be independently relevant under Rule 404(b), and the probative value of the evidence must outweigh any danger of unfair prejudice in accordance with Rule 403. Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). Another crime is “independently relevant” if it tends to prove a material point and is not introduced merely to demonstrate that the defendant is a criminal. See Regalado v. State, 331 Ark. 326, 961 S.W.2d 739 (1998); Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994); White, supra. The admission or rejection of evidence under Rule 404(b) is left to the sound discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992).

When evidence of a prior crime reflects a consciousness of guilt, it is independently relevant and admissible under Rule 404(b). Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Arkansas case law is replete with the proposition that the flight of a person charged with the commission of a crime has some evidentiary value on the question of his probable guilt. See Houston v. State, 215 Ark. 754, 223 S.W.2d 188 (1949); Herren v. State, 169 Ark. 636, 276 S.W. 365 (1925); Steven v. State, 143 Ark. 618 S.W.218, 221 S.W. 186 (1920).

Here, appellant’s escape conviction was not used to show his character, but to show his consciousness of guilt of the rape offenses. As stated above, the judgment and commitment order from appellant’s escape is relevant under 404(b). Skiver, supra. The escape conviction was relevant to the question of appellant’s guilt. Houston, supra. For these reasons, we hold that the trial court did not abuse its discretion in allowing appellant’s conviction into evidence.

Appellant also argues that the trial court erred by not giving the jury a cautionary instruction regarding the purpose of the admissibility of the escape conviction. This argument may not be reached because he failed to request a cautionary instruction at trial. When an appellant contends that the failure to give a cautionary instruction at trial constitutes reversible error, the failure to request the instruction precludes reversal based on that claim. See Regalado, supra. The pro se appellant should be aware before he elects to proceed pro se that pro se appellants receive no special consideration of their argument and are held to the same standard as a licensed attorney. Wade v. State, 288 Ark. 94, 702 S.W.2d 28 (1986).

As his second point on appeal, appellant argues that the trial court erred in allowing the admissibility of the transcript of a taped phone conversation between appellant and the victim. Specifically, appellant argues that the State failed to lay a proper foundation for the admission of a transcript of a taped phone conversation between appellant and the victim. At trial, the State attempted to play the taped conversation and to publish the transcript to the jury. Appellant only objected to the publication of the transcript by stating that the “transcript hasn’t been entered as evidence, yet .... Unless they’ve been entered as evidence, I’m going to object to it.” The State moved to introduce the transcript, and the trial court admitted the transcript without objection from appellant.

Appellant’s argument is not preserved for appellate review. We have stated on numerous occasions that we will not consider an argument raised for the first time on appeal. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). To preserve an argument for appeal, there must be an objection in the trial court that is sufficient to apprise the court of the particular error alleged. A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Id.

At trial, appellant objected to the admissibility of the publication of the transcript without apprising the court of his specific objection. He merely stated, “Unless they’ve been entered as evidence, I’m going to object to it [the publication of the transcript].” When the trial court admitted the transcript, appellant did not object. On appeal, he advances his argument on the basis of Ark. R. Evid. 401 and Ark. R. Evid. 901. Because he has changed the basis of his objection on appeal, we should not consider his argument on this point.

We also note that appellant has not demonstrated how he was prejudiced by the admission of the transcript. Evidence that is merely cumulative or repetitious of other evidence admitted without objection cannot be prejudicial. Bunn v. State, 320 Ark. 516, 898 S.W.2d 450 (1995). Appellant did not object to the admission of the taped phone conversation. If the content of the tape and the transcript are identical, they are cumulative under Bunn and cannot be prejudicial. Accordingly, there are no grounds for reversal.

The transcript of the record in this case has been reviewed in accordance with Ark. Sup. Ct. R. 4-3 (h) which requires, in a case in which there is a sentence of life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16 — 91—113(a) (1987). No such errors have been found.

Affirmed.

       Appellant’s first conviction was reversed on appeal on the grounds that the prosecutor had impermissibly told the jury during opening arguments that appellant was a convicted felon. Elliott v. State, 335 Ark. 387, 984 S.W.2d 362 (1999)(hereinafter “Elliott I”). We note that the name is spelled differently in the two cases, but the appellant is the same person. In Elliott I, the prosecutor stated during his opening remarks that Elliott “was convicted in Texas of assault and bank robbery. We have a certified copy of his conviction.” Id. at 390. The issues presented in Elliott I are not the subject of the rulings in this case. We also note that the victim’s initials are reflected as C.E. instead of C.Q.


author:
Ray Thornton, Justice.
      Tom Glaze, Justice, Robert L. Brown, Justice, Lavenski R. Smith, Justice

text:
    Arlanda JACOBS v. The Honorable Harvey L. YATES, Circuit Judge, et al.

    00-618
    27 S.W.3d 734
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000

      Wilson & Valley, by: J. F. Valley and Don Etherly, for appellant.
    L. Ashley Higgins, P.A., by: L. Ashley Higgins, for appellees.
   Ray Thornton, Justice.

Appellant Arlanda Jacobs, a candidate for justice of the peace for district seven in Phiffips County, brought a challenge to the qualifications of an opponent for the position, Doris Diane Tyler. She counterclaimed, challenging Jacobs’s qualifications as well, and the circuit court found that neither party was qualified to stand for the position. Jacobs brings this appeal of the order below and we affirm, finding no merit to the appeal.

On May 5, 2000, appellant brought his Petition for Writ of Mandamus, removal from the ballot, and declaratory judgment against Tyler, the three members of the Phiffips County Board of Election Commissioners, and Linda Faye White, the county clerk of Phiffips County, alleging that Tyler, a resident of Phiffips County, was not a resident of district seven and, therefore, was ineligible to run for the office. Jacobs requested that a hearing date be set within seven days, and the trial court set the matter for a hearing on May 16. White and Tyler were not served nor given notice of the petition until May 11, and one member of the Board of Election Commissioners was not served and given notice until the day of the hearing. The date of the election was May 23, 2000, and absentee balloting had already commenced at the time Jacobs filed his petition.

On the day of the hearing, Tyler filed a response, denying appellant’s contention that she was ineligible to be a candidate, and counterclaiming that Jacobs was not qualified to be a candidate because his check for payment of his filing fee, given on the day before the final date for filing and payment of the fee, had been dishonored when it was presented to his bank for payment. Tyler also filed a third-party petition and class action on behalf of “the voters and residents of Phillips County, who will be gravely and adversely [affected] should [Jacobs] be allowed to [flout] the law and remain a candidate for Phillips County Justice of the Peace District 7,” seeking a writ of mandamus, removal from the ballot, and declaratory judgement. Tyler named the officers of the Phillips County Democratic Central Committee as well as Jacobs, and petitioned the court to direct the Committee, the Commission, the county clerk, and all other interested parties to disqualify Jacobs as a candidate, to remove his name from the ballot, and publish notice that any votes cast for Jacobs would not be counted.

On May 16, the election commission filed its separate answer contending that the ballots for the primary had already been printed, that the “chip” for tabulating votes had been programmed, and that the proper remedy would be to direct the commission to disregard any votes cast for an ineligible candidate. A similar separate answer was filed in response to the petition filed by Tyler. On the same day, the county Democratic committee filed its separate answer to the petition filed by Tyler, agreeing with the answer of the election commission with respect to the remedy available, and praying that “the court hear this case, declare the rights of the parties, and enter such orders as may be appropriate to direct the separate defendants in their official capacities with respect to the performance of [their] ministerial duties with respect to the subject matter hereof.” A similar prayer was articulated in the answers of the election commissioners.

Jacobs challenged the standing of Tyler to file an answer and counterclaim, and further challenged her standing to file a petition for mandamus and declaratory judgment to have Jacobs’s name removed from the ballot. Jacobs asserted that he was not given the requisite two days to respond to the petition, and sought a continuance. The trial court denied a continuance because of the nature of the proceedings, and, because all parties were present, proceeded with the scheduled hearing to determine the eligibility of each candidate. Tyler stipulated that she had learned that she did not reside in the district for which she had filed her candidacy, then presented evidence in support of her contention that Jacobs had attempted to pay his fifing fee with a check that was returned to the Democratic Central Committee by the bank for insufficient funds.

Following the hearing, the trial court found that Tyler was not a qualified elector for district seven and ordered that the election commission should not certify any votes cast for her in the election. On the counterclaim, the trial court, relying on Fletcher v. Ray, 220 Ark. 844, 250 S.W.2d 734 (1952), found that Jacobs’s payment by a personal check that was returned for insufficient funds when presented to the bank for payment did not constitute payment prior to the fifing deadline. The trial court found that he was not eligible for candidacy as provided by Ark. Code Ann. § 7-7-301 (Repl. 2000). Accordingly, the election commission was directed not to certify any votes cast for Jacobs in the election.

On May 24, 2000, the day following the election, Jacobs filed with the clerk of this court his petition for writ of prohibition, or writ of certiorari, motion to stay, or motion to expedite appeal from the order of the trial court. We granted the motion to expedite the appeal, denied the remaining requests, and now consider appellant’s arguments on appeal. Jacobs raises four points on appeal.

For his first point on appeal, Jacobs argues that the trial court did not acquire jurisdiction to hear and determine the petition for writ of mandamus filed by Tyler. Jacobs misconstrues the nature of an action for mandamus. Mandamus is traditionally regarded as a remedy to be used on all occasions where the law has established no specific remedy, and justice and good government require it. State v. Craighead Co. Bd. of Election Comm’rs., 300 Ark. 405, 779 S.W.2d 169 (1989). It is a writ used to enforce a specific right. Id. Here, appellant seeks to enforce Ark. Code Ann. § 7-5-207(b) (1999). That statute created a right in the people to the proper administration of election laws by prohibiting the inclusion of ineligible candidates on the ballot:

No person’s name shall be printed upon the ballot as a candidate for any public office in this state at any election unless the person is qualified and eligible at the time of fifing as a candidate for the office, to hold the public office for which he is a candidate. . . .

Id. The only practical method of enforcing this right is the remedy of mandamus. Craighead County, supra.

We recognize that the issue before us is not a post-election contest between two competing candidates, but is a proceeding to protect the public interest in requiring compliance with statutory requirements with regard to assuring that a candidate for election to an office may not be elected, or certified as a candidate for election to an office, when that person is not eligible to run or serve. When the eligibility of a person to appear on the ballot is controverted, it becomes a matter for the courts. Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994) makes it clear that the chairman and secretary of a political party do not have the judicial authority to determine that a candidate is ineligible to hold public office. Indeed, it is clear that such a determination should be made by a trial court. Id.

Jacobs also asserts, without citation to authority, that service upon his counsel of Tylers counterclaim and petition for writ of mandamus challenging his qualifications as a candidate was invalid to effect proper service of Jacobs. Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Jacobs next contends that the trial court erred in failing to continue the hearing with regard to Tyler’s counterclaim and petition for writ of mandamus because he was not given a minimum of two days’ notice pursuant to Arkansas Civil Procedure Rule 78 (d)(2000), which provides that “upon the filing of petitions for writs of mandamus or prohibition in election matters, it shall be the mandatory duty of the judge or chancellor having jurisdiction to fix and announce a day of court to be held no sooner than two (2) and no longer than seven (7) days thereafter to hear and determine the cause.” Id. We have previously addressed this issue in Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998), holding that the violation of the two-to-seven day provision does not deprive the court of jurisdiction in an election contest. Id. Furthermore, the trial court treated Jacobs’s objection to proceeding on the counterclaim as a motion for a continuance, which he denied.

The denial of a motion for a continuance is within the sound discretion of the trial court, and the trial court’s ruling will be reversed only if there is an abuse of discretion. Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994). The burden is on the appellant to show an abuse of that discretion as well as to demonstrate prejudice before this court will consider the trial court’s denial of a continuance as an abuse of discretion warranting reversal. Id. Here, where there is no showing that Jacobs was surprised by the allegations contained in Tyler’s counterclaim, nor any arguments made to the trial court of any prejudice he was likely to suffer by the denial of the motion for continuance, the trial court will be affirmed . It is unlikely that one who invokes the jurisdiction of a court in an expedited proceeding to challenge the qualifications of his opponent in an election could show surprise or lack of notice when his own qualifications are similarly challenged in response. While the dissent makes an interesting argument regarding Jacobs’s ability to obtain testimony from bank officials about the dishonor of his check, that argument was not presented by appellant to the trial court. The burden was upon appellant to make that argument below, so that the trial court might have the opportunity to consider it in making his ruling on the denial of the motion for continuance. Our law is well settled that we will not consider an argument raised for the first time on appeal, and a party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).

Jacobs also charges that Tyler’s counterclaim was not filed within twenty days of the accrual of the cause of action, relying upon Ark. Code Ann. § 7-5-801 (Repl. 2000). The burden is clearly placed on the appealing party to provide both a record and abstract sufficient for appellate review. Oliver v. Washington County, 328 Ark. 61, 940 SW. 2d 884 (1997). While Jacobs does not bring forth a record sufficient to allow us to address this issue on appeal, the question of timeliness under the statute would be jurisdictional if the statute applied to this set of facts. However, the statute relied upon by appellant does not apply to this case, as it confers a right of action on a candidate to contest the certification of a nomination or of the vote following an election. Id. (emphasis added). Rather, Ark. Code Ann. § 7-5-207 (Repl. 2000), which does control this action as concerning the placing of names on the ballot, includes no such twenty-day limitation nor a guideline as to when the statute of limitations would begin to run. Id. In fact, our court established the procedure and manner to proceed under Ark. Code Ann. § 7-5-209 in our decision in State v. Craighead County Bd. of Election Comm’rs., supra.

For his second point on appeal, Jacobs relies on Ark. Code Ann. § 16-118-105(b)(1999), urging that the trial court erred in finding that Tyler had standing to challenge his qualifications for the office. Jacobs contends that Tyler lacked standing because she was not herself eligible as a candidate, contending that once Tyler was removed from the ballot as candidate, she lost her standing to petition the trial court for a writ of mandamus. Fie argues that only persons who were qualified candidates themselves could challenge his candidacy, and further contends that under section 105, only the state or the person to whom the office belongs can bring an action challenging a candidate. This statute is inapplicable to the matter at hand, as it concerns the usurpation or exercising of an office to which one is not entitled following an election. Tyler’s action instead challenged Jacobs’s qualifications to appear on the ballot as a candidate for the office, and we have established law that gives a voter the right to challenge the qualifications and eligibility of a candidate, providing remedies to voters, candidates, and other interested parties, including county election officials charged with the ministerial duties of oversight of the election. Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995).

At all times relevant to this case, Tyler was a resident and a voter of Phillips County seeking a writ of mandamus to require the Phillips County Election Commission and the Phillips County Democratic Central Committee to perform the ministerial duties required by statute for elections conducted in Phillips County. In Tittle, supra, it was argued that a political party might choose an ineligible candidate so that a substitute might make the race after the filing date had closed. In response, we stated: “Tittle’s voiced concern ignores established law that gives a citizen the right to challenge the qualifications and eligibility of a candidate and to remove his or her name from the ballot, if found ineligible.” Id.

It is also worthy of note that Blanche Robinson, the appellant in Craighead County, supra, was a voter of the county and brought an action in mandamus relating to candidates for two Justice of the Peace districts, as well as a candidate for municipal judge. As one can only claim domicile in one place, it is clear that the appellant did not live in both the Justice of the Peace districts at issue in that case. Appellant here cites no authority holding for the proposition that a voter of a county, petitioning for a writ of mandamus to compel a party central committee and county election commission to follow statutory duties, must reside in that particular district, and we know of no requirement that a voter’s standing to contest another’s qualifications for an office in that county is dependent upon the establishment of that voter’s own eligibility to run for the office.

Neither have we discovered, nor has appellant cited us to, any cases suggesting that a voter of Phillips County would lose standing to require the election commission of that county to follow the law. Even if such a rule existed, we note that there remained parties to the litigation who had standing to seek relief through mandamus. As the concurrence notes, the Phillips County Election Commission and the Democratic Central Committee prayed for declaratory relief from the trial court on the issue of the qualifications of the two candidates. Not only do the Commission and the Committee have standing to pursue such a question in court, indeed, we have held that they do not have the authority to make the determination as to eligibility in the absence of a judicial finding, by a trial court, as occurred here. See Ivy, supra. Certainly, they possess standing, as a result of their ministerial obligations under statute, to request a judicial determination whether a candidate was qualified to stand for the office in question.

For his third point on appeal, Jacobs challenges the trial court’s determination that the payment of his filing fee with a check returned by the bank for insufficient funds did not constitute payment prior to the filing deadline. He urges that we overrule or distinguish Fletcher v. Ray, 220 Ark. 844, 250 S.W.2d 734 (1952). In Fletcher we held that the filing fee was not timely paid unless the check given in payment was paid on presentment to the bank. Payment was considered made on the date of the receipt of the check only when the check is paid in due course. Id. “Since there were not sufficient funds in his bank account to pay the check given in payment of his ballot fee when the check was presented to the bank, the check did not constitute payment.” Id. We adopted the rule that the giving of a draft or bank check by a debtor for the amount of his indebtedness to the payee was not, in the absence of an express or implied agreement to that effect, a payment or discharge of the debt, the presumption being that the draft or check is accepted on condition that it shall be paid. Id. Accordingly, we held that the payment of a filing fee by a dishonored check in Fletcher, even though it was later paid in cash, did not constitute timely payment of the filing fee where payment was effected after the deadline for the filing date. Id.

The same holds true here. Had Jacobs’s check been honored by the bank upon first presentment by the party officials, the filing fee would have been considered paid as of the date of the receipt of the check. Fletcher, supra. However, its return by the bank for insufficient funds meant that the check given for the filing fee was not honored upon presentment. Therefore, there was no timely payment of the required filing fee, and Fletcher, supra, controls the disposition of this case.

Appellant’s contentions that the committee handled the check as a “holder in due course” is misplaced, as there was no subsequent negotiation of the check by the committee to an innocent purchaser for good faith who could then assert his “holder in due course” defense when the check was dishonored. See Ark. Code Ann. § 4-3-302 (Repl. 1991). Similarly, neither Arkansas’s adoption of Article 3 of the Uniform Commercial Code nor Ark. Code Ann. § 4-60-103 (Repl. 1996), concerning liability for restitution to be made for violation of the Arkansas Hot Check Laws, has overruled or abrogated the rule in Fletcher dealing with the timely payment of candidate filing fees. The issue here is not whether the check was ultimately paid, but, rather, whether the check for payment of the filing fee, .for which a deadline was imposed under the state election laws, was good at the time it was presented to the bank. It was not. The check was dishonored and therefore the payment of the filing fee was rendered untimely. Making the check good later, or allowing a late payment in cash, would render the imposition of a deadline for the payment of the filing fee meaningless.

We note that while the dissent has posited the theory that the check might have been good but was possibly dishonored due to bank error, Jacobs in his argument to this court does not dispute that his check for payment of the filing fee was returned as dishonored upon first presentment. Nonetheless, the issue is not whether Jacobs had sufficient funds in his account at the time he gave the check for payment to the Committee; rather, as in Fletcher, the issue is whether the check was good upon presentment to the bank for payment. When a person gives a check which is good at the time, but withdraws his funds from the bank before the check is presented, he may not contest the dishonor in the absence of unreasonable delay in presentment. Fletcher, supra. The burden of showing that there were funds on hand to meet the check was upon the drawer of the check, and if he does not show that there are funds subject to his check at all times after the making of the check, or some other arrangement by which payment of his check is guaranteed at the time the payee may desire to present it, he cannot claim damage. Id. (emphasis added).

For his final point on appeal, Jacobs contends that the trial court erred in admitting into evidence copies of the check made out to the committee with the bank’s return stamped “insufficient funds,” because the copies were not the best evidence. The “best evidence rule,” as Arkansas Rules of Evidence Rule 1004 (2000) is popularly known, provides that: •

The original is not required, and other evidence of the contents of a writing ... is admissible if: . . . at the time when an original was under the control of the party against whom it is offered, he was put on notice, by pleadings or otherwise, that the contents would be a subject of proof at the hearing; and he does not produce the original at the hearing.

Id. Jacobs acknowledges in his argument that he was in possession of the original of the check, which had been returned to him by the bank once it was ultimately paid. Because Jacobs did not produce the original, the best evidence available to Tyler was the copy of the check in the possession of the committee secretary. The trial court did not err in admitting the copies of the returned check.

In sum, we conclude that Jacobs’s appeal is without merit and that the trial court correctly determined that any ballots cast for him in the primary election should not have been counted and certified by the election commission. The trial court is affirmed and the mandate is ordered issued within five days unless a petition for rehearing is filed. If a petition for rehearing is filed, the mandate will be stayed until the petition for rehearing is acted upon.

Affirmed.

GLAZE, J., concurs.

Brown, Imber, and Smith, JJ., dissent.

Tom Glaze, Justice,

concurring. The lack-of-standing issue raised by Jacobs in this case is easily resolved by recognizing that the Phillips County Board of Election Commissioners and the Phillips County Democratic Committee had the standing to request the relief they requested, namely, for the trial court to declare the parties’ rights and direct the county election commissioners and county Democratic Committee members as to how they should proceed with respect to their election duties. For example, the Phillips County Election Commissioners are necessary parties in this litigation because they had the responsibility to provide the election ballots for the primary election and the ballots were to contain the names of the qualified and eligible candidates. Ark. Code Ann. § 7-5-207 (Repl. 2000); see also Ark. Code Ann. §§ 7-5-208, 7-5-211, and 7-5-407 (Repl. 2000). Obviously, the Phillips County Board of Election Commissioners was a necessary party so that complete relief could be afforded in this action which was brought seeking compliance with § 7-5-207. See State v. Craighead County Bd. of Election Commr’s, 300 Ark. 405, 779 S.W.2d 169 (1989); Ark. R. Civ. P. 19 (2000).

Because I agree with the majority opinion that the Phillips County Board of Election Commissioners (and the Phillips County Democratic Committee) have standing in this action, I see no need for the court to address whether Doris Tyler had standing. For that reason, I concur with the majority on the standing issue.

Brown and Smith, JJ., dissenting.

Robert L. Brown, Justice,

dissenting. Several aspects of the majority opinion are troubling to me.

The opinion initially concludes that Arlanda Jacobs made no showing of surprise by Doris Diane Tyler’s counterclaim and the hearing held two hours after the counterclaim was filed. I disagree. A hearing had previously been set for 3:00 p.m. on May 16, 2000, on Tyler’s residency, which was the sole issue raised by Jacobs in his mandamus petition. The issue of the insufficient funds check was not raised by Tyler until her counterclaim which was filed at 11:50 a.m. on the day of the hearing. Jacobs was not served with the counterclaim until after lunch on that same date, and the hearing began at 3:00 p.m. Jacobs objected to the hurried nature of the proceeding and argued that since Tyler’s counterclaim was also a mandamus action which raised a new issue, he was entitled to two day’s notice before a hearing. See Ark. R. Civ. P. 78. The trial court, however, disallowed any continuance. As a result, Jacobs was unable to subpoena sufficient records from his own bank, First National Bank of Phillips County, or obtain Bank witnesses to testify about the status of his account, or otherwise prepare adequately for the hearing. No more than two hours’ notice on a new issue of such significance easily meets the criteria for surprise and prejudice in my judgment.

Jacobs’s counsel specifically objected to the hearing on the counterclaim on the basis that he was entitled to two day’s notice. That is what Ark. R. Civ. P. 78(d) requires, as Justice Smith points out in his dissent. The majority’s response is to cite the case of Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998). That case, however, only stands for the proposition that the two-to-seven day provision in Rule 78(d) does not deprive the trial court of subject-matter jurisdiction. It specifically leaves open the question of the rule’s enforcement when there has been a timely objection based on a Rule 78(d) violation, as was the case here. The answer of the majority is that the trial court treated the objection as a motion for a continuance and went on. That is not enough. Rule 78(d) provides that in election matters, it shall be the “mandatory duty” of the judge to fix a hearing date “no sooner than two (2) days.”

Why were Bank records and Bank witnesses important? From what we know, Jacobs paid his fee of $170 by check to the Phillips County Democratic Party on April 3, 2000. His bank records reflect these balances in his account on these dates:

April 3 $5,851
April 5 $5,679
April 6 $679

The Democratic Party deposited his check on April 7, 2000, into its own Bank, Helena National Bank, four days after receiving it. Helena National Bank returned the check to the Party for insufficient funds a week later on April 14, 2000. Jacobs was not notified. The Party simply redeposited the check on advice of counsel on April 14, 2000, and it cleared. Jacobs’s check was, therefore, good when given to the Party on April 3 and good for at least three days thereafter. We do not know if sufficient funds existed in Jacobs’s account on April 7, when the Party’s Bank presented the check to Jacobs’s Bank for payment. We do not know the balance in Jacobs’s account on April 14. No evidence has been presented on this matter. But we do know that when the check was returned on April 14, the Party simply ran it back through, and it cleared. The reason that we do not know what funds Jacobs had in his account on April 14 is the lack of time afforded him to prepare. These gaps in our knowledge are all a direct result of the expedited hearing foisted on the parties by the trial court, and they support Jacobs’s complaint of surprise.

The second troubling feature of the opinion is that the majority has expanded Fletcher v. Ray, 220 Ark. 844, 250 S.W.2d 734 (1952), to cover this situation. That case is distinguishable from the instant case in several important respects:

• In Ray, the candidate was notified of the insufficient funds in his account to cover the check given, and he went down to the Party and paid the fee in cash. Here, the Party simply redeposited the check without notifying Jacobs, and the check cleared. The Party apparently thought nothing more about it. This all occurred on April 14 which was more than a month before Tyler raised the issue in her counterclaim on May 16.
• In Ray, the check was not paid in due course because the candidate was notified and personally paid the fee in cash. Here, the check was paid in the ordinary course of business after the Party redeposited it without notifying Jacobs. Clearly, the Party did not view this matter as a blot on Jacobs’s eligibility.
• In Ray, Bank witnesses presented the history of the candidate’s checking account and testified that no mistake could have been made in returning the check for insufficient funds. Here, the hearing on Tyler’s counterclaim was held so quickly that information on Jacobs’s account could not be gathered from the Bank in time.

For Ray to be precedent, it should be on all fours factually with this case, and it is not. I further note that Act 465 of 1969 and Act 169 of 1977, now codified as Ark. Code Ann. § 7-7-301 (Repl. 2000), establish the procedure for party pledges and party filing fees, and they were enacted after the Ray decision. As the case notes under this statute state, the Ray case was decided “under prior law.”

Next, there is the issue of Tyler’s standing. Clearly, she does not reside in Justice of the Peace District 7 in Phillips County, as the trial court found. Yet, the majority grants her standing to contest Jacobs’s eligibility to run for election in that district. The majority does so not based on the fact that she was a citizen of the affected district but apparently because she was a citizen of Phillips County. Does this mean that any citizen of Arkansas can go outside of his or her district and attack the eligibility of candidates for the state senate or state house of representatives not to mention candidates for the circuit court and congress anywhere in the state? It would appear so based on the broad holding of the majority. Yet I question whether a non-resident’s interest in candidate eligibility is sufficient to give rise to standing.

The authority cited by the majority does not support its position. In Tittle v. Woodruff, 322 Ark. 153, 907 S.W.2d 734 (1995), which is cited by the majority, Tittle filed as a Republican for a JP District and asserted that he had no standing to contest the certification of the Democratic Party’s nominee. We held that Tittle, as a citizen, did have standing to raise the eligibility of his Democratic counterpart. The important point, though, was that Tittle was a citizen of the affected JP District. In the case before us, Tyler is not. And in State v. Craighead Co. Bd. of Elect. Comm’ns, 300 Ark. 405, 779 S.W.2d 169 (1989), the issue of the standing of a citizen of Craighead County to contest the eligibility of candidates in two JP Districts and for municipal judge was never raised or considered by this court. Again, this principle of universal standing vested in a citizen to contest candidate eligibility regardless of the citizen’s residence appears to have been expanded to embrace the facts of this case. I disagree that Tyler had standing to raise the mandamus issue.

Removal of someone from the ballot is a matter of the gravest significance, because it deprives the voters of a choice. The facts of this case do not warrant removal in my judgment, because Jacobs’s bank ultimately paid the filing fee to the Democratic Party’s account without Jacobs’s knowledge or intervention. These facts differ markedly from those in Ivy v. Republican Party, 318 Ark. 50, 883 S.W.2d 805 (1994), where this court declined to allow a political party to remove a candidate from the ballot for good cause after nomination, thus creating a vacancy in nomination, without first petitioning circuit court to do so. Here, collection of the fee by the Democratic Party before nomination was purely ministerial, and the Party voiced no objection on the payment issue until Tyler raised it more than a month later. Indeed, the Party found Jacobs eligible to be nominated with respect to payment of fees and signing the party pledge pursuant to Ark. Code Ann. § 7-7-301 (Repl. 2000).

Again, what precipitated the problems in this case was the expedited manner in which the counterclaim was tried in violation of Rule 78. Jacobs made the following assertion in his brief on appeal:

Moreover, Jacobs was blind-sided and upon such short notice, was unable to get bank officials to trial to aid in his defense. He did not have time to go home to get the original check from his records to show proof of payment and dates of such payment and was unable to put forth the defense of a quality and character that he could have had appropriate notice and opportunity to object been granted.

The majority contends that Jacobs did not argue that returning his check might have been error. But the fact that he had been “blindsided” by the counterclaim was urged throughout the hearing, and the fact that bank officials were- not present to authenticate the check and Jacobs’s account was a point alluded to by both sides at the hearing. I would reverse the decision of the trial court based on the violation of Rule 78(d). For that reason, I respectfully dissent.

Lavenski R. Smith, Justice

dissenting. The majority correctly states the analysis to be followed in cases such as this where a challenge is made to a candidate’s qualifications prior to an election. The proper remedy is a Writ of Mandamus and a declaratory judgment in circuit court. However, I disagree that the writ should have been issued on the record before us.

The undisputed facts are that Jacobs filed an action to challenge the qualifications of Tyler on May 5, 2000 and served notice of the same on Tyler on May 11, 2000. The trial court set the matter for hearing on May 16, 2000 at 3:00 p.m. Approximately three hours before the hearing, Tyler filed her answer and a counter claim seeking Jacobs’s removal from the ballot for late payment of fees. As the hearing commenced, Jacobs objected to the court proceeding on the basis that the applicable law required at least two days’ notice. The trial court overruled Jacobs’s objection because of the court’s constricted docket and stated it would not grant a continuance. The majority affirms the trial court’s decision to proceed with the hearing citing Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998) for the proposition that Ark. R. Civ. P. 78(d)’s time limitations, though mandatory, are not jurisdictional. I disagree with the majority’s holding that Jenkins controls and would instead hold that the court’s decision to proceed with the hearing not merely within two days of service of the claim but hardly more than two hours after it was filed was reversible error. The combination of this decision and Jenkins will effectively eliminate the time requirement contained in Rule 78(d). Not only can a trial court apparently delay mandamus actions with impunity it can now also accelerate them. Even assuming the trial court correctly viewed Jacob’s objection as a motion for continuance, to require a party to defend against a claim on three hours notice is at a minimum unfair and should constitute an abuse of discretion.

In Jenkins, this court held that delaying beyond the prescribed seven days did not deprive the trial court of jurisdiction. This case is not about whether the trial court had jurisdiction to accelerate the proceeding but whether it was fundamentally fair to the party defending the claim to do so. I would hold it was not, and therefore I dissent.

Brown and Imber, JJ., join.


author: Lavenski R. Smith, Justice.

text:
    STATE of Arkansas v. Robert A. ROBBINS
    CR 98-1394
    27 S.W.3d 419
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000

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

      Lea Ellen Fowler, for appellee.
   Lavenski R. Smith, Justice.

Robert A. Robbins was convicted of the capital murder of Bethany White and sentenced to death by a Craighead County jury on June 17, 1998. He did not appeal. This is an automatic review of the entire capital-murder conviction and death-sentence record pursuant to the procedure this court set out in State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). We find no error.

Procedural History

Since Robbins’s sentencing, we have examined aspects of this case on five previous occasions. In Robbins I this court reviewed the record of the hearing on Robbins’s decision to waive his right to appeal. State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998). Under the analysis set out in Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), we held that Robbins’s knowingly and intelligently waived his appeal rights, including his rights under Rule 37.5. In Robbins II, we clarified our January 14, 1999, mandate in response to the State’s motion to dissolve the stay of execution. State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999).

Subsequently, in Robbins III, we stayed the execution and ordered briefing on four specific issues raised by a “petition of next friend to recall mandate, for stay of execution and for reexamination of legal and factual issues,” filed by Robbins’s mother. State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999). Robbins IV addressed those issues, and although we denied Mrs. Robbins’s intervention as a next friend, the court nonetheless declared that existing law required an automatic review of the entire record in all death-penalty cases for egregious and prejudicial error. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (1999). Robbins IVoverruled Franz to the extent it might be argued to give an appellant the ability to waive anything other than his personal right to appeal. Otherwise, Franz is unchanged. In addition to any applicable Franz analysis, the entire record will be reviewed, and the court is to determine if: (1) any prejudicial errors have occurred; (2) whether plain errors covered by the exceptions outlined in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), have occurred; and (3) whether other fundamental safeguards were followed. Finally, Robbins V merely clarified the duty of appointed counsel in preparation for the present review. State v. Robbins, 340 Ark. 255, 9 S.W.3d 500 (2000).

Facts

The evidence in the record below reveals the following facts. Robbins dated White about a year and a half when Bethany attempted to end her relationship with Robbins. On at least one occasion during the relationship, Robbins assaulted Bethany, and then sought psychological help for his anger. Bethany began dating others. Robbins became obsessed with Bethany and neglected other aspects of his life such as his academic studies. Robbins concluded that he could not stand for Bethany to date anyone but him, and that if she would not be his girlfriend, she would be no one’s girlfriend. Robbins planned Bethany’s murder for several weeks. He wrote down some of his plans in a journal kept on his personal computer. In anticipation of the murder, he purchased a roll of duct tape to use in its commission.

On the evening of November 4, 1997, Robbins drove from Fayetteville, where he was attending college, to his home in Jonesboro for the express purpose of killing Bethany. He chose this time because he believed he could kill her when her mother would be gone from the home where Bethany and her mother lived. After arriving in Jonesboro, Robbins first tried to get Bethany to go out to lunch with him, but Bethany refused his invitation. Bethany showed apprehension about Robbins’s presence and asked a coworker to notify security if she saw him. Robbins went to Bethany’s workplace near closing time. He sat outside and waited for her. Bethany and her co-worker saw him. Rather than call security, however, Bethany decided to go with Robbins, and apparently willingly left her job with him at about 9:50 p.m. Robbins drove Bethany to her home.

When they arrived, Bethany refused to allow Robbins to go inside the home with her. Robbins deceived Bethany about his intentions to go inside by saying he would not. Then, just as she opened the door, he forced his way inside. Bethany went to the kitchen to call the police. Robbins followed, took the phone and put it down, and tried to touch Bethany’s face. She brushed his hand away, and he knocked her down. She hit her head on a step ladder as she fell. Robbins confessed that he then attacked Bethany and strangled her until his hands turned blue and he could no longer control them. According to Robbins, he tried to strangle her until his hands hurt. However, the medical examiner’s report showed that the bruising on the victim was more consistent with a forearm choking from behind. Robbins confessed he then attempted to break Bethany’s neck by twisting or turning it beyond the movement of the neck’s normal range of motion. The autopsy confirmed that the victim’s neck had indeed been broken.

Being uncertain of her death, Robbins stated that he then took a kitchen knife and attempted to thrust it up her nasal passage to “scramble her brains.” The autopsy report did not show any injury to Bethany’s nasal cavity. However, Robbins did stab the victim several times in the chest with a kitchen knife. He indicated that concern about Bethany’s mother’s return led him “to find a way to kind of wrap this up.” He then went to his car and retrieved the roll of duct tape he had purchased to use in the murder. He wrapped duct tape over Bethany’s mouth and nose, making certain no air could enter. According to the medical examiner, he succeeded in suffocating her.

Robbins stated that he then went upstairs to find a ring he had given Bethany and instead found a decorative or novelty sword. He went back down stairs and tried to thrust the sword through her chest into her heart, but the sword bent and would not penetrate. Finally, apparently believing he had fatally injured Bethany, Robbins placed a fortune cookie paper he received earlier at a restaurant on Bethany’s chest. The paper read, “You will soon have an opportunity to make a change to your advantage.” Robbins states he then sat down at the kitchen table, smoked a cigarette, and drank a soda while he waited, wanting to be sure Bethany was dead before he left her body, which he believed her mother would soon discover.

Robbins left the scene and used his cellular telephone to call 911 and report the murder. Robbins spoke at length with Deputy Kenny Pique of the Poinsett County Sheriff’s Department. Robbins related in painstaking detail how he had planned and carried out the murder of his girl friend. Although identifying himself, Robbins refused, however, to identify the victim or give her whereabouts so that he could be sure she could not be rescued. Robbins’s statements to police indicated he relished the killing, and in fact, would probably kill again to experience the same excitement. Eventually, at about midnight Robbins gave the victim’s name and address to police who went to the home and found the victim. As police worked the crime scene, Robbins called Bethany’s house, identified himself, and again confessed. The police apprehended Robbins later that day in Conway County.

The police returned Robbins to Jonesboro, and the prosecutor charged him with capital murder on November 5, 1997. The State gave notice it intended to seek the death penalty. Following arraignment, Dr. Michael Simon, pursuant to court order, examined Robbins for competence to stand trial as well as competence to be executed. The circuit court held a hearing on Robbins’s fitness to proceed to trial on June 5, 1998, and based upon Dr. Simon’s testimony, the court found him competent.

Robbins’s trial began on June 15, 1998. Robbins steadfastly insisted on waiving his right to counsel. The court permitted him to do so. However, the trial court, in an abundance of caution, appointed three attorneys as standby counsel to advise and assist him. At trial, Robbins participated in the selection of the jury, gave an opening statement, cross-examined witnesses and gave a closing argument. Jury selection consumed all of the first day of trial and part of the second day. After the preliminary phases, the state introduced the testimony of thirteen witnesses. These witnesses included those who saw the defendant with the victim, heard Robbins’s confessions, arrested him, investigated the crime scene, examined evidence, and conducted the post-mortem on the victim. Robbins offered no witnesses. After receiving the court’s instructions, the jury deliberated and found Robbins guilty of capital murder.

In the penalty phase of the trial the State offered one witness, Jan White, mother of the victim. She gave victim- impact testimony and talked about the life of her daughter and how much she was missed. Robbins cross-examined the mother, but the court sustained objections made by the State to questions Robbins asked due to their irrelevance and insensitivity. Robbins offered no mitigating evidence. Indeed, he made plain to the jury throughout the trial that he believed his actions warranted imposition of the death penalty. The jury again deliberated and recommended a sentence of death.

Franz Analysis

In Robbins IV, this court indicated a review of the entire record would be useful in evaluating whether Robbins’s properly waived his right to appeal under Franz. Flowever, we note that the court has already conducted a Franz analysis in Robbins I. There, we held that Robbins knowingly and intelligently waived his right to appeal. Upon review of the entire record, there is nothing in the record below to invalidate that holding. Robbins IV served to qualify Franz such that a defendant can only waive his personal right to appeal. It did not alter our earlier determination that Robbins validly waived his appeal rights.

Prejudicial Errors

A review of the record reveals few adverse rulings to consider. Counsel appointed to abstract the record and prepare a brief for this court’s review of this death sentence brings one issue to the court’s attention. She notes an objection by standby counsel to the State’s refusal to allow Robbins to plead guilty and proceed to sentencing by the jury. This discussion involved Ark. Code Ann. § 16-97-101 (6) (Supp. 1999) which standby counsel argued appeared to give a criminal defendant the right to make a guilty plea and then be sentenced by a jury. Counsel challenged the constitutionality of Arkansas’s capital-murder statute in that Ark. Code Ann. § 5-4-602 (Repl. 1997) requires a jury to hear all evidence relevant to the charge. The trial court overruled the objection. It did so correctly. A criminal defendant in Arkansas does not have the right to plead guilty and waive a trial by jury unless the prosecutor and the court agree. State v. Smittie, 341 Ark. 909, 20 S.W.3d 352 (2000). Additionally, Ark. R. Crim. P. 31.4 is on point and provides specifically that a defendant charged in a capital felony may not waive trial by jury on the issue of guilt or sentence unless the prosecutor agrees.

We also hold that the trial court did not err in sustaining the State’s objection on the basis of relevance to Robbins’s' cross-examination of Bethany’s mother about her daughter’s wedding plans during the penalty phase. There was no abuse of discretion nor did prejudice result to the defendant. An analysis of any remaining adverse rulings on objections, motions, and requests by appellant pursuant to Ark. Sup. Ct. R. 4-3 (h) reveals no prejudicial error.

Plain Error

Arkansas does not recognize plain error, i.e. an error not brought to the attention of the trial court by objection but nonetheless affecting substantial rights of the defendant. State v. Montague, 341 Ark. 144, 14 S.W.3d 867(2000). However, we have adopted limited exceptions. See Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In Robbins IV, this court also mandated consideration of the Wicks exceptions in death-penalty cases like the instant case where the defendant has waived appeal. These exceptions are (1) a trial court’s failure to bring to the jury’s attention a matter essential to its consideration of the death penalty itself; (2) error by the trial judge of which the defense has no knowledge and therefore no opportunity to object; (3) a trial court’s failure to intervene without objection and correct a serious error by admonition or declaring a mistrial; and (4) failure of the trial court to take notice of errors affecting substantial rights in a ruling admitting or excluding evidence, even though there is no objection. Our review of the record reveals no errors under the Wicks exceptions to the rule in Arkansas that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court.

Fundamental Safeguards

The third and final review requirement under Robbins IV is to determine whether other fundamental safeguards were followed. The term “fundamental safeguards” was not defined in Robbins IV nor do we attempt to definitively state their limitations here. Suffice it to say, nothing in the instant record reveals any irregularity in procedure that would call into question the essential fairness of the process afforded the defendant.

Robbins’ Desire for the Death Penalty

This case is unique. From its inception, the defendant not only did not oppose but has actively sought imposition of the death penalty as the appropriate sanction for his criminal conduct. This, coupled with his decision to represent himself at trial, means that the adversarial process characteristic of the criminal justice system proceeded differently. That the jury ultimately sentenced Robbins to death is not evidence that they acceded to his wishes. The jury is presumed to follow the court’s instructions. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). In voir dire, the trial judge specifically cautioned prospective jurors that Robbins was seeking his own death, and were asked if they would consider the facts and follow the court’s instructions rather than accede to Robbins’s wishes. They indicated they would. There is nothing in the record to indicate that the jury did otherwise. Neither passion nor prejudice appear to have played any role in the outcome of their deliberations. The jurors determined that the defendant’s actions constituted capital murder and that under Arkansas law the aggravating circumstances outweighed any mitigating circumstances thus warranting imposition of the death penalty. The mere fact that the defendant’s wishes were consistent with the jury’s determination does not invalidate their verdict.

Affirmed.

Glaze, J., dissents; see Robbins v. State, 339 Ark. 379, 389, 5 S.W.3d 51, 57 (1999).

       Ark. Code Ann. 16-91-113(a)(Supp. 1999) and Ark. S. Ct. R.. 4-3(h).

       Ark. Code Ann. § 5-10-101 (4)(Repl. 1997).


author: Per Curiam.

text:
    James Wesley BILYEU v. STATE of Arkansas
    CR 98-1480
    27 S.W.3d 400
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000

      Hurst Law Offices, by: Q. Byrum Hurst, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: O. Milton Fine II, Ass’t Att’y Gen., for appellee.
   Per Curiam.

James Wesley Bilyeu was found guilty in 1996 of second-degree murder and sentenced to thirty years’ imprisonment. A fine of $15,000 was also imposed. The Arkansas Court of Appeals affirmed. Bilyeu v. State, CA CR 97-505 (Ark. App. February 4, 1998). Bilyeu subsequently filed in the trial court a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37. The petition was denied without a hearing, and the appeal of that order was lodged. The appellee sought by motion to remand the matter to the trial court for written findings of fact. The appellant agreed that written findings should have been entered, and he also requested an evidentiary hearing. We granted the State’s motion to remand in Bilyeu v. State, CR 98-1480 (April 15, 1999). The trial court determined that a hearing was necessary, and after taking evidence, the court denied appellant’s petition by order dated July 8, 1999. Appellant now challenges the court’s July 8 order denying his Rule 37 petition.

First, we must address the State’s contention that appellant failed to perfect his appeal from the July 8 order. The State argues that appellant did not file a notice of appeal from the July 8 order which was the final controlling order in the case. We agree.

Whether appellant filed an effective notice of appeal is always an issue before the appellate court. Absent an effective notice of appeal, this court lacks jurisdiction to consider the appeal and must dismiss it. See Pannell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995). A notice of appeal must be filed within thirty days from the date of entry of an order denying a petition for postconviction relief under Ark. R. Crim. P. 37. Ark. R. App. P. 2(a)(4). The notice of appeal shall identify the judgment or order being appealed. Ark. R. App. P. 2(a)(4).

In this case, we granted the State’s motion to remand for the trial court to enter written findings or to hold a hearing if necessary; we also issued a writ of certiorari for the trial court to forward a complete record to our Court. We made the writ returnable on or before May 15, 1999. Because the trial court found it necessary to hold a hearing, the State requested an extension of time for return of the writ. We granted the State’s motion and extended the time period for return of the writ to July 14, 1999. Unfortunately, appellant failed to file a notice of appeal from the July 8 order. Because appellant failed to perfect the appeal from the July 8 order, we dismiss the appeal.

Dismissed.


text:
    James A. FERGUSON v. STATE of Arkansas
    CR 99-999
    26 S.W.3d 787
    Supreme Court of Arkansas
    Opinion delivered October 5, 2000

      Hampton, Larkowski & Benca, by: Patrick J. Benca, for appellant.

      Mark Pryor, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   Per Curiam.

Appellee, State of Arkansas, filed the instant motion urging this court to reconsider our order granting appellant’s motion for oral argument. In support of its position, the State contends that we granted appellant’s request without the benefit of the State’s response and prior to the time that such response was due. Further, the State claims that Ark. R. Sup. Ct. 5-1 (a) (2000), prohibits oral argument in this case. Rule 5-1 (a) provides, in part, that “[a]ny party may request oral argument by filing, contemporaneously with that party’s hriej, a letter, separate from the brief, stating the request with a copy to all parties.” (Emphasis added.) The State’s interpretation of the rule is that a party’s request must accompany their initial appellate brief.

In response, appellant notes that the language of Rule 5-1(a) does not include such a limitation nor does this construction make sense. For example, an appellee may raise an argument in its reply brief that would influence an appellant’s determination of whether an oral argument would “significantly aid the decision-making process.” See Ark. R. Sup. Ct. 5-1 (a)(3). We agree. Here, appellant timely filed his request for oral argument contemporaneously with his reply brief. Accordingly, we deny the State’s motion to reconsider our order granting oral argument.

       Appellant also argues that his request for oral argument would be timely if made within ten days of the last brief being due with the Court. We reject this interpretation of Rule 5-l(a). The request must be made contemporaneously with the brief.


text:
    Oscar STILLEY v. Helen McClinton BRADLEY
    00-1102
    27 S.W.3d 436
    Supreme Court of Arkansas
    Opinion delivered October 6, 2000

      Appellant, pro se.
    No reply.
   Per Curiam.

The appellant/intervenor, Oscar Stilley, seeks an expedited briefing schedule and decision in conjunction with the appeal of an August 29, 2000, Jefferson Circuit Court decision. We deny the motion.

The appellant filed his motion to expedite on Friday, September 29, 2000, and this matter came before this Court on the following Wednesday, October 4, 2000. The appellant has made no request for a stay, but asserts the following:

The county board of election commissioners is required to “prepare official absentee ballots and deliver them to the county clerk for mailing to all qualified applicants as soon as practicable before the last day on which the ballot will be counted but in any event not less than twenty-five (25) days before any election.” Ark. Code Ann. [§] 7-5-407. Mertz v. State, 318 Ark. 239, 884 S.W.2d 264 (1994).
By the calculations of undersigned, the 25 day deadline will not be passed if this cause is decided by October 12, 2000, same being a regular day of decision for the Court. Appellant prays that the scheduling order provide for the completion of this appeal in time for decision on or before October 12, 2000.

The appellant asks us to require the appellee to present a brief in time for the Court to consider this case prior to October 12, 2000, so that the case will be decided prior to the commencement of absentee balloting, which begins on October 13, 2000, for the November 7, 2000, election. To do so would not only be unfair to the appellee, it would also not give this Court the time needed for deliberation of the issue or issues to be presented. See McCuen v. Harris, 318 Ark. 522, 891 S.W.2d 350 (1994). We, therefore, must deny the motion for expedited consideration.

Denied.

       It should be noted that although appellant now wishes this matter to be expedited, he waited to file the instant motion until thirty days after the trial court entered its order of mandamus on August 29, 2000.

       Assuming, however, that this Court was able to decide the case prior to October 13, 2000, and assuming appellant prevailed, the county clerk would still have to have time to study the initiative petition and signatures to determine and certify the sufficiency of the initiative petition, which would be impossible prior to the election.


text:
    Jennifer SHOOK, as a Shareholder on Behalf of Delta P.C. & I., Inc. v. The CHANCERY COURT of BENTON COUNTY, Arkansas, Division Two
    00-1131
    27 S.W.3d 745
    Supreme Court of Arkansas
    Opinion delivered October 10, 2000

      Michael Hodson and Kenneth Shemin, for petitioner.

      Davis, Wright, Clark, Butt & Carithers, PLC, by: Mark W Dossett, for John Shook.
   Per Curiam.

Petitioner Jennifer Shook, as a shareholder on behalf of Delta P.C.&L, Inc. (Delta), has filed a petition for writ of prohibition against respondent, The Chancery Court of Benton County, Arkansas Division Two, to halt the sale of Delta’s assets. The petition asserts that the chancery court lacks subject-matter jurisdiction over Delta, since Delta was not a party to the underlying divorce action in Benton County Chancery Court, styled Shook v. Shook, Case No. E-97-2047-2. The sale of Delta’s assets is set for 2:00 p.m., October 11, 2000, at the Benton County Courthouse. Specifically, Jennifer Shook, as a Delta shareholder, asks this court (1) to issue the writ of prohibition for the Delta asset sale; (2) to expedite our consideration of the matter; and (3) to stay all proceedings relating to Delta in Case No. E-97-2047-2.

John Shook rather than the respondent Chancery Court responded to the petition for writ of prohibition and maintained that the decree ordering the sale of Delta’s assets as well as other property was entered almost a year ago on November 22, 1999, and Jennifer Shook did not appeal from that decree. He contends that she is using this original proceeding for a writ of prohibition in place of the appeal, which she waived.

We grant the stay with respect to the sale of Delta’s real and personal property and direct the parties to file simultaneous briefs within thirty days on the question of whether the chancery court has subject-matter jurisdiction to issue a decree relating to a nonparty corporation. We also ask the parties to address whether Jennifer Shook, as a shareholder, has standing to file this prohibition petition on behalf of Delta and whether Delta was in effect a party before the chancery court because the two fifty percent shareholders in a Subchapter S Corporation (Delta) were before the court.

This stay will not apply to the sale of the shares of stock in Delta P.C.&I. Mechanical and Electrical, Inc., and Delta P.C.&I., Inc., and the other personal property, equipment, and furnishings listed in the Commissioner’s Notice of Sale filed October 2, 2000. The stay is limited to the real and personal property of Delta P.C.&I., Inc. listed in the notice of sale.

Glaze, J., not participating.