author: Annabelle Clinton Imber, Justice.

text:
    STATE of Arkansas v. Victor WARREN
    CR 00-1179
    49 S.W.3d 103
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

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

      McCullough Law Firm, by: R.S. McCullough, for appellee.
   Annabelle Clinton Imber, Justice.

On March 1, 2000, the State charged Victor Warren in Pulaski County Circuit Court with being a felon in possession of a firearm (FIP) in violation of Ark. Code Ann. § 5-73-103 (Repl. 1997). The State’s FIP charge was predicated upon its assertion that Mr. Warren had previously been convicted of a felony. The facts in this matter are not disputed. In 1977, the Cross County Circuit Court had placed Mr. Warren on five years’ probation after he entered a plea of guilty to felony charges of burglary and theft of property. This disposition by the Cross County Circuit Court was subject to the expungement provisions of Act 346 of 1975, a first-offender statute later codified in Ark. Code Ann. § 16-93-301 et seq. (1987). Eventually, Mr. Warren went to the Cross County Circuit Court and obtained an order dated July 31, 1997, which found that he had complied with its 1977 orders. Pursuant to the expungement provisions of Ark. Code Ann. § 16-93-301 et seq, the Cross County Circuit Court sealed and expunged Mr. Warren’s record.

Mr. Warren filed a motion to dismiss the FIP charge in Pulaski County, asserting that the State could demonstrate no predicate felony necessary to prove that he was a felon in possession of a firearm because his prior record had been properly expunged under section 16-93-303 (b)(1). The State argued that, pursuant to Act 595 of 1995, the expunged felony record in Cross County could still be used as a predicate felony sufficient for an FIP prosecution. The trial court rejected the State’s argument and granted Mr. Warren’s motion to dismiss the FIP charge.

The State now brings this appeal under Arkansas Rules of Appellate Procedure — Criminal Rule 3(b) and (c), asserting that the trial court improperly granted Mr. Warren’s motion to dismiss the State’s FIP charge. The State maintains in its jurisdictional statement that review of the trial court’s ruling is necessary to insure the correct and uniform administration of the criminal law, “particularly as the interpretation of statutes and Acts of the General Assembly is required.” Before addressing the merits of the State’s claim in this case, we must first determine whether this issue is properly before us under Rule 3(c). The principles governing our acceptance of appeals by the State in criminal cases are well-settled and clear:

We accept appeals by the State when our holding would be important to the correct and uniform administration of the criminal law. Rule 3(c). As a matter of practice, this court has only taken appeals “which are narrow in scope and involve the interpretation of law.” State v. Banks, 322 Ark. 344, 345, 909 S.W.2d 634, 635 (1995). Where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). Appeals are not allowed merely to demonstrate the fact that the trial court erred. State v. Spear and Boyce, 123 Ark. 449, 185 S.W. 788 (1916).

State v. Thompson, 343 Ark. 135, 138-39, 34 S.W.3d 33, 35 (2000) (quoting State v. Stephenson, 330 Ark. 594, 595, 955 S.W.2d 518 (1997)).

Based upon the above-stated principles, we conclude that this case presents no issue essential to the correct and uniform administration of the criminal law. To the contrary, the case at bar raises exactly the same issue that this court addressed and decided in State v. Ross, 344 Ark. 364, 39 S.W.3d 789 (2001). In that case, the trial court dismissed a felon-in-possession charge against Mr. Ross because his prior felony conviction had been expunged. The State appealed the trial court’s ruling and argued before this court that Act 595 of 1995 allowed the use of Mr. Ross’s expunged record to support a felon-in-possession prosecution. Id. Act 595 prohibits the possession of a firearm by anyone who has been determined by a court or a jury to have committed a felony, even if that conviction has been expunged pursuant to any act. However, Act 595 was not enacted until after Mr. Ross pled guilty and was placed on probation under Ark. Code Ann. § 5-64-401 etseq. (1987), a first offender statute; and section 5-64-407 of that statute mandated that the circuit court “discharge Ross and dismiss the proceedings against him upon Ross’s fulfillment of the terms and conditions of his probation.” State v. Ross, 344 Ark. at 366-67, 39 S.W.3d at 790-91. Specifically, at the time Mr. Ross was placed on probation in 1994, § 5-64-407, in pertinent part, provided:

Whenever any person who has not previously pleaded guilty or been found guilty, . . . pleads guilty to or is found guilty of possession of a controlled substance under § 5-64-401 . . . this court . . . may defer proceedings and place him on probation for a period of not less than one year. . . . Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualification or disabilities imposed by law upon conviction of a crime. . . .

We rejected the State’s argument that Act 595 should be applied retroactively and affirmed the trial court’s order of dismissal. State v. Ross, 344 Ark. at 368, 39 S.W.3d at 791.

As in State v. Ross, the State’s FIP prosecution in this case depends upon proof of a felony conviction that has been expunged. Mr. Warren was placed on probation in 1977 under Act 346 of 1975, another first-offender statute. Upon expungement, pursuant to the terms of that Act, Mr. Warren was “discharged without court adjudication of guilt,” the charges against him were dismissed, the records were sealed, and Mr. Warren was “completely exonerated of any criminal purpose.” Act 346 of 1975, codified at Ark. Code Ann. § 16-93-301, -303(b)(1) and (2) (1987). The State again argues, as it did in State v. Ross, supra, that Act 595 of 1995 authorizes the prosecution of Mr. Warren despite the expungement of his record and that Act 595 should be applied retroactively to Mr. Warren. In light of our holding in State v. Ross, supra, it is clear that the State cannot now rely upon Mr. Warren’s expunged record to prosecute him as a felon in possession of a firearm pursuant to Act 595 of 1995.

We decided State v. Ross, supra, on April 5, 2001, and the State petitioned for rehearing on April 18, 2001. On May 3, 2001, we denied the State’s petition for rehearing and our mandate issued. At that time, briefing in the instant matter was ongoing. The State does not dispute the application of State v. Ross, supra, to the instant case. To the contrary, the Office of the Attorney General, through Senior Assistant Attorney General David R. Raupp, acknowledges in its May 21 reply brief, that State v. Ross, supra, is controlling, but urges us to overrule that decision. Following our decision in Ross and denial of rehearing, the State had more than ample time to review the decision and file a motion to dismiss the pending appeal in this case. The State chose not to do so. Instead of dismissing the State’s appeal against Mr. Warren, the Office of the Attorney General decided to pursue a frivolous and meritless appeal because it was “not happy with the Ross decision” and because it thinks Ross was “wrongly decided.”

In the recent case of Stilley v. Hubbs, 344 Ark. 1, 40 S.W.3d 209 (2001), Mr. Stilley continued to pursue issues in his appeal that we had clearly decided adversely to him in Stilley v. Henson, 342 Ark. 346, 28 S.W.3d 274 (2000), only four months earlier. Mr. Stilley refused to concede the merits of the issues that had been decided by the Henson decision and urged this court to reverse itself and rule in his favor in the Hubbs appeal. Pursuant to Ark. R. App. P. — Civil 11, we imposed a sanction in the amount of $2,000 against Mr. Stilley for his failure to dismiss that portion of his appeal that had already been decided in Stilley v. Henson, supra. Stilley v. Hubbs, 344 Ark. 1, 7, 40 S.W.3d 209, 213 (2001) (supplemental opinion imposing Rule 11 sanctions). Civil rule 11 authorizes the imposition of sanctions for civil appeals that are not “well grounded in fact, . . . warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; [or] filed for an improper purpose.”

The Rules of Appellate Procedure — Criminal do not authorize the imposition of sanctions for frivolous appeals in criminal cases. However, in appeals by the State, the Office of the Attorney General is required by Ark. R. App. R — Crim. 3(c) to certify that it “is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court.” As in the case of Stilley v. Hubbs, supra, the State has acknowledged that only three months ago we handed down our decision in State v. Ross, supra, which directly controls the issues presented by the State in this appeal. We will not allow the State to pursue frivolous appeals of criminal matters without recourse when we have held that such actions in a civil case warrant sanctions. On a prior occasion, when it has been clear to this court that the State has not acted responsibly or with diligence in a criminal matter, a copy of our opinion has been forwarded to the Committee on Professional Conduct. Bowen v. State, 320 Ark. 342, 895 S.W.2d 941 (1995).

This appeal is dismissed under Ark. R. App. P. — Crim. 3(c), and a copy of this decision will be forwarded to the Committee on Professional Conduct.

       Section 5-73-103(a) and (b) in relevant part provide: “(a) No person shall possess or own any firearm who has been convicted of a felony; . . . (b) A determination by a jury or a court that a person committed a felony (1) shall constitute a conviction for purposes of subsection (a) of this section even though the court . . . placed the defendant on probation, . . .

       This Act was subsequendy amended in 1995. See Act 998 of 1995, codified at Ark. Code Ann. § 16-93-301 et seq (Supp. 1999).

       The State’s Senior Assistant Attorney General, David R. Raupp, also avers in the jurisdictional statement that “this appeal is of substantial public interest and raises a significant issue needing clarification of the law concerning the construction of statutes and the acts of the General Assembly.” This statement, required by Ark. Sup. Ct. R. 1 — 2(c)(1)(B)(ii), relates to the division of cases between the Supreme Court and the Court of Appeals under Ark. Sup. Ct. R. 1-2(b) rather than the State’s authority to take an appeal in a criminal case, which is governed by Ark. R. App. P. — Crim. 3. Under Rule 3(c), the Office of the Attorney General must certify that the correct and uniform administration of the criminal law requires review by an appellate court.

       At the time Mr. Warren was placed on probation in 1977, section 16-93-303(b) (1) and (2) provided: “(1) Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order which shall effectively dismiss the case, discharge the defendant, and expunge the record. (2) The order shall completely exonerate the defendant of any criminal purpose and shall not affect any civil rights or liberties of the defendant.”


source: Caselaw Access Project

author: Ray Thornton, Justice. Robert L. Brown, Justice, Donald L. Corbin, Justice,

license: Public Domain

text:
    GHEGAN & GHEGAN, INC., On Behalf of Itself and All Taxpayers Similarly Situated v. Richard A. BARCLAY, Director of the Arkansas Department of Finance and Administration
    01-15
    49 S.W.3d 652
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Timothy Davis Fox, PLLC, by: Timothy Davis Fox; and Will Bond, for appellants.

      William E. Keadle, for appellee.
   Ray Thornton, Justice.

This is an illegal-exaction case that involves a challenge on equal protection grounds of the constitutionality of portions of the Soft Drink Tax Act (“Act”), which is codified at Ark. Code Ann. § 26-57-901 et seq. (Repl. 1997). We previously considered in Ghegan v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999), the question whether Ghegan & Ghegan, Inc. (“Appellant” or “Ghegan”), had standing to bring an action based upon allegations of violations of constitutional requirements of equal protection. Id. Upon reviewing the trial court’s granting of the Department of Finance and Administration’s (“DFA”) motion to dismiss for lack of standing, we concluded that accepting Ghegan’s allegations in the light most favorable to the plaintiff, the matter should not be summarily dismissed, but Ghegan should be given the opportunity to present evidence in support of its claims because the traditional standing requirements had been met. Id.

A trial then ensued in the Pulaski County Chancery Court, at the conclusion of which the chancellor found that Ghegan had faded to establish that the disparity between the taxes imposed upon syrups used in making soft drinks and the taxes imposed upon both finished soft drinks made from powders and bottled soft drinks resulted in an unconstitutional violation of the Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States or Article 2, Section 3, of the Constitution of the State of Arkansas. Appellant argues that a rational basis test is applicable, and further argues that: (1) the trial court erred in its determination that the Act does not treat persons differently, (2) the trial court erred in its determination that there are rational bases for the discrimination against retailers selling soft drinks made from syrup, (3) the DFA is violating the Act and its own regulation by taxing cherry syrup and vanilla syrup used to flavor soft drinks, and (4) the Act’s border city exemption as written violates equal protection. We find no reversible error and affirm.

Ghegan is a corporation that runs a small pizzeria in Flot Springs and is a retailer that sells soft drinks made from syrup. During the pendency of this litigation, Ghegan has sold both Coca-Cola soft drinks made from syrup and Pepsi soft drinks made from syrup. Ark. Code Ann. § 26-57-904 (Repl. 1997) provides, in relevant part:

(a) There is hereby levied and there shall be collected a tax upon every distributor, manufacturer, or wholesale dealer, to be calculated as follows:
(1) Two dollars ($2.00) per gallon for each gallon of soft drink syrup or simple syrup sold or offered for sale in the State of Arkansas;
(2) Twenty-one cents (21 ¡t) per gallon for each gallon of bottled soft drinks sold or offered for sale in the State of Arkansas;
(3) Where a package or container of powder or other base product, other than a syrup or simple syrup, is sold or offered for sale in Arkansas, and the powder is for the purpose of producing a liquid soft drink, then the tax on the sale of each package or container shall be equal to twenty-one cents (21 ¡t) for each gallon of soft drink which may be produced from each package or container by following the manufacturer’s directions. This tax applies when the sale of the powder or other base is sold to a retailer for sale to the ultimate consumer after the liquid soft drink is produced by the retailer.
(b)(1) Any retailer or retail dealer, who purchases botded soft drinks, soft drink syrup, simple syrup, powder, or base product from an unlicensed distributor, manufacturer, or wholesale dealer shall be liable for the tax levied in subsection (a) of this section on those purchases.

Id.

Under Ark. Code Ann. § 26-57-904, Ghegan and all other persons who purchase concentrated syrup, to be mixed with water for use as a soft drink, must pay a tax of $2.00 per gallon of concentrated syrup. This tax is levied on the concentrated syrup regardless of the amount of soft drink made from the syrup. Retailers that sell bottled soft drinks pay a soft-drink tax of $.21 per gallon of soft drink. Retailers that use powder to make a resulting soft drink pay a soft-drink tax of $.21 per gallon of finished product, based upon how many gallons of soft drink should be produced from the powder, assuming that it is mixed according to the manufacturer’s mixing directions. With regard to soft drinks made from concentrated syrup, the manufacturers recommend ratios of 4.75:1, 5:1, or 5.25:1 when mixing syrup with water, depending on the manufacturer and whether the soft drink is a diet or sugar soft drink, but these ratios are not mandatory. If mixed according to the suggested ratios, testimony shows that the computation of the effect of the $2.00 tax upon each gallon of concentrated syrup would be equivalent to a tax between $.32 and $.35 per gallon, for each gallon of finished product.

Appellant brought a declaratory judgment action seeking a declaration, in relevant part, (1) that Ark. Code Ann. § 26-57-904 is unconstitutional as being violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and of Article 2, Section 3, of the Arkansas Constitution and, thus, null and void, (2) that an accounting be ordered, (3) that an interest bearing escrow account be established, and (4) that such escrow account be held pending further court order.

At the conclusion of the trial, the trial court found that Ark. Code Ann. § 26-57-904 is not unconstitutional as being violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution or Article 2, Section 3, of the Arkansas Constitution because Ghegan failed to establish that any disparity in the taxing of soft-drink syrups and soft-drink powders resulted in an illegal discrimination between persons similarly situated and denied and dismissed appellant’s complaint for declaratory judgment. It is from this order that appellant brings this appeal.

I. The Trial Court Did Not Err in its Determination That the Soft Drink Tax Act Does Not Treat Persons Differently

We review decisions of the chancery court de novo, but we do not set aside findings of fact unless they are clearly erroneous. E.g., Wisener v. Burns, 345 Ark. 84, 44 S.W.3d 289 (2001) (citing Kinghorn v. Hughes, 297 Ark. 364, 367, 761 S.W.2d 930 (1988)); Lotz v. Cromer, 317 Ark. 250, 878 S.W.2d 367 (1994). We also review issues of statutory construction de novo, as it is for us to decide what a statute means. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (citing Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999)).

The burden of showing a violation of equal protection is very high. Our understanding of this principle was illuminated by the Supreme Court in Madden v. Commonwealth of Kentucky, 309 U.S. 83 (1940), where the Court stated, “The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized.” Id. “[T]he presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against persons and classes.” Id.

In Davies v. City of Hot Springs, 141 Ark. 521, 217 S.W. 769 (1920), we stated, “The only restriction which the law imposes on the exercise of power is that there shall not be a discrimination between persons in like situations and pursuing the same class of occupation.” Id. (citing Waters-Pierce Oil Co. v. Hot Springs, 85 Ark. 509, 109 S.W. 293 (1908)). In addition, in City of Ft. Smith v. Scruggs, 70 Ark. 549, 69 S.W. 679 (1902), we stated, “But the rule of equality only requires that the tax shall be collected impartially of all persons in similar circumstances.” Id.

We have outlined on numerous occasions the elements that are necessary in order to determine whether an equal protection challenge is warranted. In Pledger v. Featherlite Precast Corp., 308 Ark. 124, 823 S.W.2d 852 (1992), we stated, “In deciding whether an equal protection challenge is warranted, there must first be a determination that there is a state action which differentiates among individuals.” Id. (quoting Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918 (1991)). “No state shall... deny to any person within its jurisdiction the equal protection of the laws.” Bosworth, supra (quoting U.S. Const, amend. 14). The federal equal protection clause prohibits arbitrary classifications by the state resulting in different treatment of persons similarly situated in the exercise of its powers. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983).

With regard to appellant’s designated “Point' I” on appeal, we note that the “rational basis” test is not relevant unless there is a disparate tax treatment between persons similarly situated. Only if there exists a discrimination between persons similarly situated is it necessary that a rational basis for such discrimination be established. Bosworth, supra. Accordingly, we first address appellant’s designated “Point II” that the trial court erred in its determination that the Act does not treat persons differently. Appellant argues that the trial court’s finding that the discrimination is against products, not people, is contrary to the definitions in the Act, to the testimony and evidence, to the findings made by the trial court, to the law of the case, as well as being contrary to the border city tax statutes. We will briefly address each of these points before turning our attention to the underlying issue whether the trial court’s findings were contrary to the facts and the applicable law as articulated in our case law on this issue.

A. Trial Court’s Findings of Fact

Appellant contends that the trial court’s legal conclusion that the discrimination is against products, not people, is contrary to the findings of fact issued by the trial court. Appellant cites paragraph 7 of the trial court’s order in support of its argument, where the trial court stated “that retailers who sell soft drinks produced by syrup pay a higher tax per gallon of soft drink produced than retailers who sell bottled soft drinks or soft drinks by powder.” (Emphasis supplied.) Appellant asserts that this finding of fact is contrary to the trial court’s determination that the discrimination is against products, not people. We disagree.

The language appellant relies on for its assertion is taken out of the context of the trial court’s order. Paragraphs 6 and 7 of the trial court’s order provide, in relevant part:

Plaintiff has attempted to classify a retailer who sells soft drinks that are made from syrup as a different class of persons than a retailer who sells bottled soft drinks or soft drinks that are made from powder. The retailer makes a choice regarding the form of the product it elects to sell to the consumer.... It is the taxing of the form of the product about which the plaintiff complains, not that it is treated differendy than any other person subject to the Soft Drink Tax, as a result of the tax. The plaintiff has consistendy assumed that it was a purpose of the legislation to equally tax a resultant gallon of soft drink. As pointed out to the plaintiff at the summary judgment hearing, nowhere in the statute does it state such a purpose. However, the court will address the issue as the plaintiff presents it.
7. The plaintiff has failed to meet its very high burden by simply proving that retailers who sell soft drinks produced by syrup pay a higher tax per gallon of soft drink produced than retailers who sell bottled soft drinks or soft drinks produced by powder.

The trial court’s recitation of appellant’s claim “that retailers who sell soft drinks produced by syrup pay a higher tax per gallon of soft drink produced than retailers who sell bottled soft drinks or soft drinks produced by powder” was made after first pointing out that such a showing did not meet the burden of establishing discrimination between persons. It is clear from the context of both paragraphs 6 and 7 that the trial court disagreed with appellant’s contention that individuals are being taxed differently, not products. Therefore, we find no merit in appellant’s argument that the trial court’s findings of fact were contrary to the trial court’s conclusion that the discrimination is against products, not people.

B. “Border City” Tax Provision As Controlling the Imposition of Soft-Drink Taxes

Appellant next contends that the trial court’s determination that the discrimination is against products, not people, is contrary to the “border city” tax provision of the Act. Specifically, appellant contends that Ark. Code Ann. § 26-57-907 (Repl. 1997) provides further evidence that this is not a case involving differentiation between products, but between individuals, in this case, retailers. That section provides, in relevant part:

(a) If a distributor, manufacturer, or wholesale dealer sells bottled soft drinks, soft drink syrups, powders, or base products to retailers or retail dealers located in a city or incorporated town which is subject to the border city tax rate provided in § 26-52-303, then the tax shall be at the same rate as imposed by the adjoining state on distributors, manufacturers, or wholesale dealers, not to exceed the rate imposed by § 26-57-904.

Id.

We are not persuaded by appellant’s attempt to utilize Ark. Code Ann. § 26-57-907, a statutory section regarding an exemption, to illustrate its contention that the trial court’s determination that the discrimination is against products, not people, is contrary to the “border city” tax provision of the Act. It is true that Ark. Code Ann. § 26-57-907 provides a benefit to retailers located in a border city or incorporated town, and is thus a benefit to individuals. However, an exemption for an individual can apply to a tax that is imposed on products or services as well.

For example, Ark. Code Ann. § 26-52-401 (Supp. 1999) provides exemptions for sales by churches and charitable organizations, which can be viewed as exemptions for individuals. See id. However, Ark. Code Ann. § 26-52-401 also provides an exemption for sales of certain products, such as newspapers and certain publications, regardless of the identity of the seller or buyer. See id.

Because it is clear that an act can provide for both exemptions for individuals and on products and services at the same time, and vice versa, one cannot determine the nature of a tax by looking at an exemption provision. Consequendy, appellant’s argument that, because the border city tax provision of the Act refers to individuals, this indicates that the Act discriminates against individuals, not products, must fail.

C. Law of the Case

Appellant also argues that the trial court’s determination that the discrimination is against products, not people, is contrary to the law of the case. It is well settled that the decision on the first appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal. Morris v. Garmon, 291 Ark. 67, 722 S.W.2d 571 (1987). In support of its argument, appellant cites our decision in the prior appeal of this case in Ghegan v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999). However, in Ghegan, supra, we were only addressing the issue whether Ghegan had standing to bring an illegal-exaction challenge under Article 16, Section 13 of the Arkansas Constitution. See Ghegan, supra. We stated:

The sole issue on appeal is whether the trial court erred when it ruled that Ghegan did not have standing under Article 16, Section 13, of the Arkansas Constitution to challenge the constitutionality of section 26-57-904(a) of the Arkansas Soft Drink Tax Act. When reviewing a trial court’s ruling on a motion to dismiss under Ark. R. Civ. P. 12(b)(6), we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint.

Id: (citations omitted). Applying our standard of review regarding motions to dismiss, we based our ruling only on the allegations made in the complaint, and our decision was limited to the context of whether appellant had met the general requirements necessary for standing to warrant our reversal of the trial court’s order granting appellee’s motion to dismiss. See id. We were not addressing the merits of appellant’s substantive arguments. In the context of a standing case, appellant was not required to prove any individual disparate treatment necessary to support an equal protection violation claim. Nor were we providing a ruling on a substantive equal protection claim that was not properly before us. Accordingly, we hold that the trial court’s determination that the discrimination is against products, not people, is not contrary to the law of the case in Ghegan, supra.

D. Definitions Enacted by the General Assembly in the Soft Drink Tax Act

Appellant also contends that the trial court’s determination that the discrimination is against products, not people, is contrary to the definitions enacted by the General Assembly in the Act. Appellant contends that the only difference between the definitions of “powder” and “syrup” is that “powder” is a “solid” and “syrup” is a “liquid,” but that the two definitions are the same in all other respects.

The definitions for “powder” and “syrup” are provided in Ark. Code Ann. § 26-57-902 (Repl. 1997), and state, as follows:

(10) “Powder” or “other base” means a solid mixture of basic ingredients used in making, mixing, or compounding soft drinks by mixing the powder or other base with water, ice, syrup or simple syrup, fruits, vegetables, fruit juice, vegetable juice, or any other product suitable to make a complete soft drink.
(15) “Syrup” means the liquid mixture of basic ingredients used in making, mixing, or compounding soft drinks by mixing the syrup with water, simple syrup, ice, fruits, vegetables, fruit juice, vegetable juice, or any other product suitable to make a complete soft drink.

Id. (emphasis added). Appellant contends that because the wording of these two definitions are so similar, “[t]he General Assembly has legislatively defined ‘powder’ and ‘syrup’ as the exact same thing, ‘a mixture of basic ingredients used in making, mixing, or compounding soft drinks.’

As authority for its argument, appellant relies on our decision in Bird v. Pan Western Corp., 261 Ark. 56, 546 S.W.2d 417 (1977), where we stated that “in construing an act, the courts are bound by specific definitions of a word by the legislature in that act.... ” Id. Appellant also cites Quaker City Cab Co. v. Commonwealth of Pennsylvania, 277 U.S. 389 (1928), where the Supreme Court held that the practical operation of the section levying tax is to be regarded and dealt with according to its effect. Id. (citing Frick v. Pennsylvania, 268 U.S. 473 (1925); Panhandle Oil Co. v. Mississippi, Til U.S. 218 (1928)). Appellant asserts that because of the decision in Quaker City Cab Co., supra, we should look to the practical operation of the soft-drink tax legislation, which, they assert, is to levy a substantially higher soft-drink tax against retailers making soft drinks from syrup than is levied against retailers making soft drinks from powder.

We note that the cases cited by appellant do not support its assertion that because the definitions of “powder” and “syrup” are similar, the General Assembly has legislatively defined these words as the exact same thing. For example, Bird, supra, dealt with the issue of whether a subcontractor who was not licensed as a contractor under Arkansas law could claim money for work under a contract, and we held that the subcontractor met the definition of “contractor” by the nature of the work that it did, but that since the subcontractor was not licensed, it could not prevail in its claim for money under the contract. Id. In addition, the quotation appellant cites from Bird, supra, is taken out of its context. The full quotation states:

The ordinary and generally accepted meaning of words used in a statute must yield to the meaning intended by the General Assembly when it is clear from the context of the act that a different meaning is intended. Thus, in construing an act, the courts are bound by specific definitions of a word by the legislature in that act, regardless of the usual and ordinary meaning of that word; unless the definition is arbitrary, creates obvious incongruities in the statute, defeats a major purpose of the legislation or is so discordant to common usage as to generate confusion.

Id. This quotation lends more credence to the proposition that the tax is one on products, not individuals, because the words are to be construed in the context of the Act, and in the present case, it is clear from the context of Ark. Code Ann. § 26-57-901 et seq. that two different products were intended. We further note that Ark. Code Ann. § 26-57-904 specifically distinguishes syrups from powders in its imposition of taxes.

In addition, Quaker City Cab Co., supra, which appellant cites for the proposition that the practical operation of the section levying the tax is to be regarded and dealt with according to its effect, is factually distinguishable to the present case. In that case, the Court invalidated a Pennsylvania statute that imposed a tax on the gross receipts derived by corporations from their operation of taxicabs in intrastate transportation of passengers, while not taxing the like receipts of individuals and partnerships in the same kind of business. Id. The Court found this tax to be in violation of equal protection, stating that valid tax classification cannot rest solely on the character of the taxicab operator as being corporate or non-corporate when there is no other difference in the situation or the circumstances of the operators. Id. On the other hand, in this case, the trial court found that appellants were purchasing different products, and that it was the products that were taxed differently. Here, unlike in Quaker City Cab Co., supra, the applicable tax on syrups, powders, and soft drinks is the same for all customers, regardless of the character of the purchaser. Finding no reversible error, we affirm on this subpoint.

E. Case Precedent

Having concluded that there is no merit in appellant’s contentions on these subpoints, we turn our attention to an analysis of the statutes and case law as applied to the factual circumstances of the case before us. Appellant strongly contends that the trial court’s finding that the facts do not show a different treatment of persons is contrary to applicable case law, and, accordingly, must be reversed. We disagree. The trial court found:

The Soft Drink Tax statutes do not treat retailers-or the distributors, wholesalers, or manufacturers-differently. All are taxed the same. They have to pay $2.00 on every gallon of syrup; $.21 on every gallon of bottled drink; and $.21 on every gallon of soft drink produced by powder. It is the product that is taxed differently. Plaintiff has attempted to classify a retailer who sells soft drinks that are made from syrup as a different class of persons than a retailer who sells bottled soft or soft drinks that are made from powder. The retailer makes a choice regarding the form of the product it elects to sell to the consumer. Plaintiff sells Coca-Cola fountain drinks by mixing syrup with carbonated water in a machine. Thus, it pays the $2.00 per-gallon-of-syrup tax. Plaintiff could sell Coca-Cola soft drinks in cans, bottles, or even “premix,” which is the same product as the soft drink produced by syrup on location, and pay the $.21 per-gallon-of-soft-drink tax. It is the taxing of the form of the product about which the plaintiff complains, not that it is treated differently than any other person subject to the Soft Drink Tax, as a result of the tax.

The trial court’s analysis is consistent with our decision in Potts v. McCastlain, 240 Ark. 654, 401 S.W.2d 220 (1966), cert. denied, 385 U.S. 946 (1967). Potts, supra, involved an equal protection challenge to a privilege tax statute imposing automobile licensing fees of (1) $75.00 for taxicabs (five-passenger cars for hire); (2) $19.00 for other five-passenger cars (pleasure vehicles) of the same weight category as taxicabs; (3) $15.00 for city buses of much greater weight; and (4) special consideration by a reduction of license fees for vehicles hauling natural resources. See id. In upholding the statute, we stated, “In the case at bar the statute applies equally and without discrimination to all persons of the classification made and thereby-taxed.” Id.

Appellant contends that the trial court failed to follow our opinion in Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918 (1991) in reaching its conclusion that the soft-drink tax discriminates against products, not people. We disagree. Bosworth, supra, involved an equal protection challenge to the Arkansas gross-receipts tax on long distance telephone service. See id. The gross-receipts tax statute, which is codified at Ark. Code Ann. § 26-52-301 (Supp. 1999), imposed a tax on subscribers to “regular” long distance telephone service, those who are billed on a per-call basis. Bosworth, supra. However, that statute specifically exempted from taxation those subscribers who purchased long distance telephone service in bulk, thereby according a tax advantage based upon the amount of service purchased through a WATS agreement. See id. WATS service, where the subscriber is charged. a flat fee for the service, receiving then a lower rate for each call made or received, is entirely exempted from the tax. See id. We ultimately held that the imposition of tax upon some subscribers while exempting other subscribers from payment of any tax was discriminatory, but did not violate equal protection because there was a rational basis for the disparate tax rate. See id. We first addressed the question whether there was a state action that differentiated among individuals and concluded that there was. See id. The Director of the DFA argued that discrimination between individuals was not-shown because the only distinction made by the taxation statute was between services, not people, and cited our decision in Potts, supra. See Bosworth, supra. We concluded that the imposition of taxes upon some members of the pool of subscribers for long distance service, while exempting other members of that pool from any payment of taxes for long distance services, was disparate treatment requiring a rational basis. See id.

We note that we did not overrule.Potts, supra, in our Bosworth decision, thereby suggesting, as we now conclude, that the principles articulated in the two cases can be harmonized and applied to the case now under review. In Bosworth, supra, we were required to decide whether the state could discriminate by imposing taxes upon some of its long distance telephone subscribers while exempting other purchasers of long distance bulk telephone service from payment of any taxes without being required to show a rational basis for that discrimination. See id. We concluded that the taxes levied discriminated between individuals similarly situated, but found that the disparate treatment was not unconstitutional because there was a rational basis. See id. We ultimately held that the state could rationally impose a tax upon one group of long distance telephone service subscribers while imposing no tax upon another group of long distance telephone service subscribers. See id. By contrast, Potts, supra, applied the same $75.00 license tax to all taxicabs, the same $19.00 license tax to all private automobiles, and the same $15.00 license tax to all buses. Id.

In the case now before us, the same tax, $2.00 per gallon of syrup, is assessed on each gallon of concentrated syrup sold, whether to Ghegan or to any other purchaser of that product. No reduction or remission of the $2.00 per gallon tax is made as a result of the volume of syrup purchased by an individual customer. Every customer pays a tax of $.21 per gallon of finished soft-drink product in cans or bottles and a tax of $.21 per gallon of finished soft drinks that are mixed from powder in accordance with manufacturer’s suggested directions. No person is exempted from payment of exactly the same taxes imposed upon the particular product purchased, except border-city sales. Ghegan has the choice whether to purchase syrup, powder, or finished soft drinks, and is not restricted from making any selection he may prefer, and all other dealers have exactly the same choices. Accordingly, we agree with the trial court that “[t]he Soft Drink Tax statutes do not treat retailers-or the distributors, wholesalers, or manufacturers-differently. All are taxed the same. They have to pay a tax of $2.00 on every gallon of syrup; $.21. on every gallon of bottled drink; and $.21 on every gallon of soft drink produced by powder.”

We conclude that the trial court did not commit error in its determination that appellant has not met the burden of showing a disparate tax upon persons or classes. Therefore, it is not necessary for us to further explore appellant’s designated “Point I” and “Point III” relating to the question whether a rational basis exists to justify the different tax rates upon concentrated syrups, finished soft drinks, or powders used to mix finished soft drinks. Every retailer pays exactly the same tax upon the product that is purchased, and is free to choose what product he desires to buy — there is no discrimination between individuals.

II. Cherry and Vanilla Syrup

Appellant next argues that the DFA is violating the Act and its own regulation by taxing cherry syrup and vanilla syrup that is used to flavor soft drinks. As authority for its argument, appellant cites Soft Drink Tax Regulation 1993-8, which was promulgated by the DFA, and states, in relevant part,

17. ...’’Soft drink” does not includes products used solely for coloring or flavoring other beverages.

Id. Appellant also cites paragraph 7 of the trial court’s order, which cited testimony from Mr. Jim Wright, an auditor for the Miscellaneous Tax Division of the DFA:

Mr. Jim Wright, an auditor for the Miscellaneous Tax Division of the Department of Finance and Administration, testified, there are other taxed syrups, like cherry and vanilla, which are used in fountain drinks by adding a “dab” to the finished drink for flavor and that attempting to tax the type of syrup per gallon produced would be difficult.

We first note that the abstract indicates that this issue was never raised in the trial court. It is well settled that an argument that was never raised below will not be considered for the first time on appeal. E.g., Qualls v. White, 342 Ark. 681, 30 S.W.3d 735 (2000) (citing Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999)).

Moreover, the trial court did not issue a ruling on this argument in its order. It is well settled that issues not ruled on below will not be considered on appeal. E.g., Junkin v. Northeast Arkansas Internal Medicine Clinic, 344 Ark. 544, 42 S.W. 3d 432 (2001) (citing Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000)). The portion of the testimony cited in the trial court order did not consider the argument that the DFA was violating its own regulations by imposing a tax on cherry syrup and vanilla syrup used to flavor soft drinks. It is clear from reading this portion of the trial court’s order in context that the trial court was not ruling on the issue whether the DFA is violating the Act and its own regulation by taxing cherry syrup and vanilla syrup that is used to flavor soft drinks. Rather, the trial court cited this testimony with regard to its finding that appellant had failed to meet its burden of proving that the State did not have a rational basis for the discrimination. We further note that appellant concedes the appealability of this issue in its brief when it states, “These problems are not for consideration in this appeal and will no doubt be considered on another day if DFA doesn’t voluntarily decide to assess tax in accordance with the Act as written.” Because this issue has not been preserved, we cannot address its merits on appeal.

III. Border City Tax Exemption As Violation of Equal Protection

Appellant finally argues that the border city exemption provided in Ark. Code Ann. § 26-57-907, as written, violates equal protection. However, we note that appellant has failed to preserve this issue for appeal because the language of the trial court’s order indicates that the trial court did not rule on the constitutional argument. The trial court’s order states:

The court has had some difficulty understanding plaintiff s border tax exemption argument. As the state points out, the Arkansas Supreme Court has upheld the legitimacy of economic border town incentives. Boyd v. Weiss, 333 Ark. 684, 971 S.W.2d 237 (1998). Plaintiff contends that the “application of the border city rate is determined exclusively by whether the ‘retailer’ is ‘located in a city or incorporated town which is subject to the border city tax rate.’ ” The fact that the retailer, and not the wholesaler, is located in the border city is the reason for the border tax exemption. The purpose of the border tax exemption is to promote the economic security of retailers so that, as a result of the tax, they will not have to charge prices that are higher than a competitor in the border state. The exemption benefits, not penalizes, the retailer.

Having made these general observations, the trial court did not rule on whether the border tax exemption violates equal protection, and appellant did not seek a clarification or insist upon a ruling upon this issue. It is well settled that issues not ruled on below will not be considered on appeal. E.g., Junkin, supra (citing Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000)). Because this issue has not been preserved, we cannot address its merits on appeal.

Finding no reversible error, we affirm.

BROWN, J., concurs.

Corbin, J., dissents.

Robert L. Brown, Justice,

concurring. I agree with the majority opinion that the chancellor’s order should be affirmed. Flowever, I am unpersuaded by the majority’s futile attempt to distinguish the case of Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918 (1991), from this case. Thus, I find it necessary to analyze Ghegan’s equal protection argument.

In Bosworth, supra, we examined the constitutionality of a 1987 Act of the General Assembly which excepted WATS long distance telephone service from the state sales tax. The appellants argued that this discriminated against long distance subscribers who did not subscribe to the WATS service. We examined the question of whether the imposition of the long distance tax discriminated among individuals or whether discrimination did not occur because individuals were simply choosing a different long distance service which was available to any customer. We said:

Appellees argue that the threshold element of classification of individuals is not met because the only distinction made by the statute is between services, not people. Appellees cite Potts v. McCastlain, 240 Ark. 654, 401 S.W.2d 220 (1966), cert. denied, 385 U.S. 946 (1967), where this court upheld a privilege tax imposed on taxicabs but not on other vehicles using the same streets. They argue that as long as all “regular” long distance subscribers are taxed the same, just as all taxicab operators were taxed the same, there is no differentiation among individuals, all being treated equal. In addition, appellees cite the chancellor’s finding that “all three types of service — MTS, private line, and WATS — are available to any customer; there are no eligibility requirements,” to bolster their argument that this is a tax imposed on services, not individuals.
Although it is true that the tax is imposed on one type of long distance service and not another, it is also true that taxes are paid by individuals, and the record reflects that subscribers to “regular” long distance service pay the tax, while subscribers to WATS service do not. This disparate treatment under the statute of classes of individuals is sufficient to raise the equal protection challenge and require our further analysis.

Bosworth, 305 Ark. at 604, 810 S.W.2d at 920-21.

Similarly, in the case at bar, the Tax Code provides that the distributor of the soft drinks is taxed, not the product:

(a) There is hereby levied and there shall be collected a tax upon every distributor, manufacturer, or wholesale dealer, to be calculated as follows:
(1) Two dollars ($2.00) per gallon for each gallon of soft drink syrup or simple syrup sold or offered for sale in the State of Arkansas;
(2) Twenty-one cents (210) per gallon for each gallon of botded soft drinks sold or offered for sale in the State of Arkansas;
(3) Where a package or container of powder or other base product, other than a syrup or simple syrup, is sold or offered for sale in Arkansas, and the powder is for the purpose of producing a liquid soft drink, then the tax on the sale of each package or container shall be equal to twenty-one cents (21 ¡t) for each gallon of soft drink which may be produced from each package or container by following the manufacturer’s directions. This tax applies when the sale of the powder or other base is sold to a retailer for sale to the ultimate consumer after the liquid soft drink is produced by the retailer.

Ark. Code Ann. § 26-57-904(a) (Repl. 1997). Moreover, although all retailers are taxed a certain amount depending upon the product purchased, there appears to be disparate treatment among the amounts taxed, that is, $2.00 per gallon of syrup regardless of the amount of product produced; $ .21 per gallon for each gallon of botded soft drink sold or offered for sale; and $ .21 for each gallon of soft drink that may be produced from powder pursuant to the manufacturer’s directions. This disparate treatment among retailers is sufficient, in my judgment, to raise Ghegan’s equal protection challenge.

In Medlock v. Leathers, 311 Ark. 175, 842 S.W.2d 428 (1992), this court discussed the power to tax and classifications which invidiously discriminate:

“Inherent in the power to tax is the power to discriminate in taxation.” Leathers, _U.S. at_, 111 S. Ct. at 1446. Courts should defer to local legislative determinations as to the desirability of imposing discriminatory measures. City of New Orleans v. Dukes, 427 U.S. 297 (1976). A court will not strike down a classification merely because it is underinclusive. The law must be “purely arbitrary” in its classification; thus the only classification not allowed in taxing is invidious discrimination. Id. If a taxation statute discriminates in favor of one class it is not determined to be arbitrary so long as the discrimination is based upon a reasonable distinction, and if there is any hypothesized set of facts to uphold a rational basis. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). Appellants argue that hypothesizing a rational basis, as in Streight, should be beyond the power of this court. We view hypothesizing a rational basis the same as conceiving a rational basis; a practice that is available to the courts without question. We point to the language of Streight and conclude that any rational basis for a taxation statute may be developed at any time.
In any event, the judiciary is allowed to hypothesize and . . . reach a conceivable basis for the exemptions which [it] conclude^] are rational, reasonably distinctive and not arbitrary. It causes us to defer to legislative purpose because there is a rational basis for the tax. . . .
Before it is said that such hypothesizing is far afield, we re-emphasize that our role is not to discover the actual basis for the legislation. Our task is merely to consider if any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of utterly arbitrary and capricious government and void of any hint of deliberate and lawful purpose.
Streight, 280 Ark. at 214-15, 655 S.W.2d at 464.

Medlock, 311 Ark. at 179-80, 842 S.W.2d at 430-31.

In the case before us, the chancellor concluded that “administrative convenience” qualified as a rational basis for treating the taxation of syrup, powder, and soft drinks differently:

Clearly, the legislature could have assumed that taxing syrup by the gallon would have been easier to administer at the time the law was enacted. In fact, the testimony of Mr. Wright supported the State’s argument. Syrup is sold only in one or five gallon measures, thereby making the tax quite simple to calculate. Bottled drinks are sold in cans and a variety of sizes of bottles, but each container exhibits the volume of the soft drink. Soft drinks made from powders are sold in numerous and various containers and weights. Since there are somewhat limited taxpayers, the calculation of the number of gallons of soft drink produced has been easier. However, there is nothing in the record to indicate the General Assembly was aware of the ease with which gallons of soft drink could be calculated. The General Assembly could have concluded that gallons of syrup would be easy to calculate and tax, and that gallons of bottled soft drink would be easy to calculate and tax, but that gallons of soft drink produced by powders that vary greatly in weight and mixing instructions might be more difficult to compute. The court’s task is not to discover the actual basis for the legislation but to determine whether there is any rational basis for the classification.

In my opinion, the chancellor correctly found a reasonable basis for the disparate treatment in taxing distributors who use different soft drink products. For that reason, I, too, would affirm the chancellor’s order upholding the tax.

Donald L. Corbin, Justice,

dissenting. I respectfully dissent because I believe that there is no rational basis for taxing retailers differently based upon whether the soft drinks they sell are made with powder or syrup. I concur with Justice Brown’s opinion that the majority has faded in its attempt to distinguish the facts of this case from those in Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918, cert. denied, 502 U.S. 995 (1991). This case undoubtedly presents an issue of equal protection.

I believe, contrary to the trial court and the majority herein, that the Soft Drink Tax statutes do treat retailers or the distributors, wholesalers, or manufacturers differendy. I see no rational basis that justifies the differing tax rates upon syrups, finished soft drinks, and powders used to mix finished soft drinks. While I can understand that it may be more convenient to assess the tax on powder mixes on the basis of how much finished product the mixes will produce, I fail to see why that amount should be less than that charged to retailers who use syrup to mix their soft drinks. The majority points out that, when broken down, the computation of the effect of the $2.00 tax upon each gallon of syrup would equal between $0.32 and $0.35 per gallon for each gallon of finished product. Meanwhile, the tax on soft drinks made with powder is only $0.21 per gallon of finished product. The State has offered no rational basis for this disparate taxing treatment, and I can see none.

Moreover, while I acknowledge the holding in Medlock v. Leathers, 311 Ark. 175, 842 S.W.2d 428 (1992), cert. denied, 508 U.S. 960 (1993), that our task is only to determine whether any rational basis exists, I do not believe that any such basis exists here. I am not questioning that it may be easier to calculate the tax on powder according to the amount of finished product it will make, while it may be easier to calculate the tax on syrup based on the amount of syrup in the container. However, I can see no rational reason why the end result of the tax should not be equal. Taxing retailers who use syrup to make soft drinks at a higher rate than those who use powder as a base is nothing but arbitrary.

Furthermore, I am not persuaded by the majority’s suggestion that the retailer may avoid the higher tax by using powder, instead of syrup, to mix its soft drinks. This court has no idea what such a switch would entail, i.e., whether it would require the retailer to purchase new equipment or to otherwise change its existing facility. Additionally, this ignores the personal preference of the retailer to choose the process it desires to manufacture the ultimate soft-drink product. The State should only be interested in taxing the ultimate product. Only then could the tax be fairly imposed. Because the current tax scheme treats these similarly situated retailers disparately with no rational basis, I must dissent.


author: Ray Thornton, Justice.

text:
    William WYNNE v. STATE of Arkansas
    CR 01-390
    49 S.W.3d 100
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      Lessmeister Law Firm, PLLC, by: James J. Lessmeister, for appellant.

      Mark Pryor, Att’y Gen., by: Vacia Berger, Ass’t Att’y Gen., for appellee.
   Ray Thornton, Justice.

On March 18, 2000, appellant, William Wynne, was charged in municipal court with a third-offense driving while intoxicated (“DWI”), an unclassified misdemeanor, in violation of Ark. Code Ann. § 5-65-103 (Repl. 1997), the Omnibus DWI Act. On April 22, 2000, appellant was charged with another third-offense DWI, driving with a suspended license, and reckless driving. Both DWI charges were set for trial in municipal court on July 20, 2000. On that date, appellant was found guilty of the March 18th third-offense DWI. At the conclusion of the trial, the city attorney moved for a continuance of the April 22nd charges, and the trial court continued the case.

Subsequently, on July 26, 2000, the State dismissed the charges in municipal court relating to the April 22nd offenses, and filed felony charges for the fourth-offense DWI in Faulkner County Circuit Court. On January 3, 2001, appellant moved to remand the circuit-court case to municipal court and require that the April 22, 2000, felony charge be prosecuted as a misdemeanor third-offense DWI. At a hearing on the matter, the following colloquy occurred:

The COURT: Was there any motion to continue either case before you tried the first one?
Mr. Lessmeister [Counsel for Appellant}. No, your honor.
The COURT: So was it nolle prossed and then refiled, or was it just continued and amended?
Mr. Clark [Counsel for the State} Well, your honor, it was —■ clearly was not continued and amended because if it was amended in municipal court, your honor —
The COURT: It’d still be in municipal court.
MR. CLARK: •— it would still be in municipal court. The charges were dismissed in municipal court, and they were filed in circuit court as felony charges. Your honor, once that felony information is filed, he is apprised of the nature of the charges before him. He knows the elements we’re talking about. There is no surprise. There is no prejudice, your honor. There’s —There is no basis to have this reduced to a misdemeanor offense, your honor.
The COURT: . . . [0]nce there are three prior convictions, then the fourth — then subsequent offenses become felonies. So when the — the previous case resulted in a conviction, at that point, municipal court would basically have lost jurisdiction as to the next one because it would have been by counting a fourth offense. Counsel, I • — I can’t agree with you on your motion as far as dismissing this charge and remanding it. . . . So I’m going to deny your motion. This case will proceed to trial as a DWI 4th offense.

The trial court then denied appellant’s motion to remand the case to municipal court.

On April 2, 2001, appellant filed a notice of interlocutory appeal, as follows:

Notice is hereby given that the defendant William Wynne appeals to the Arkansas Supreme Court from the order in favor of the State of Arkansas against William Wynne entered in this case on March 19, 2001 and filed on April 2, 2001.
This interlocutory appeal is taken to the Supreme Court pursuant to Ark. Sup. Ct. R. 1-2(a) (3) “Writ of Prohibition.”

Appellant brings this appeal from the circuit court’s denial of appellant’s motion to remand the case to municipal court. We dismiss the appeal.

For his sole point on appeal, appellant argues that he was deprived of his Fifth Amendment right of due process when the prosecutor moved for a continuance. Specifically, he argues that the State’s continuance and subsequent refiling of the fourth-offense DWI in circuit court changed the nature and the degree of the offense. In response, the State argues that we lack jurisdiction over appellant’s appeal because it is an interlocutory appeal, and that we must dismiss for lack of jurisdiction.

We first .consider whether appellant seeks to bring an interlocutory appeal. Only final orders are appealable. Ark. R. App. P. — Civil 2(a)(1). An order is final if it dismisses the parties from the action or concludes their rights in the matter in controversy. Payne v. State, 333 Ark. 154, 968 S.W.2d 59 (1998). In Payne, we stated:

The requirement that an order be final to be appealable is a jurisdictional requirement. The purpose of the finality requirement is to avoid piecemeal litigation. An order is final and appealable if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. The order must put the judge’s directive into execution, ending the litigation, or a separable branch of it.

Id. (citations omitted). We have held on numerous occasions that an order that contemplates further action by a party or the court is not a final, appealable order. Id.

In the present case, the circuit court’s order denying appellant’s motion to remand to municipal court is not a final, appealable order because, when the circuit court’s order contemplates further action in the case, the order is not final. Payne, supra. Here, the circuit court’s order contemplates further action by the parties, namely appellant’s DWI trial, and jurisdiction remained in the circuit court.

We also observe that a writ of prohibition is not an appropriate remedy under these circumstances. A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction. Ibsen v. Plegge, 341 Ark. 225, 15 S.W.2d 686 (2000). The writ will not be granted unless it is clearly warranted. Id. Prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Id. A writ of prohibition cannot be invoked to correct an order already entered. Arkansas Public Defender Comm. v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000). A writ of prohibition is not directed to the jurisdiction of the individual judge but to the court itself. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).

The Arkansas Constitution provides that the circuit courts of this state have jurisdiction over felony charges. Ark. Const, art. 7, § 11; State v. Pulaski County Circuit Court, 326 Ark. 886, 934 S.W.2d 915 (1996). Here, appellant is not entitled to the issuance of a writ of prohibition because the Faulkner County Circuit Court clearly has jurisdiction over felony DWI cases. Pulaski County, supra. Accordingly, we hold that a writ of prohibition is not appropriate in this matter because the Faulkner County Circuit Court does not wholly lack subject-matter jurisdiction.

The State argues that, under Burnett, supra, we have discretion to treat both improper appeals and improper prohibition requests as a writ of certiorari, and that a writ of certiorari would not lie in the circumstances of this case. The State is correct. A writ of certiorari will lie only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Burnett, supra. A writ of certiorari is only appropriate when the lower court does not have jurisdiction to hear a claim or to issue a particular type of remedy. Id. Appellant is not entitled to a writ of certiorari for the same reasons that he is not entitled to a writ of prohibition, and the interlocutory appeal from the denial of appellant’s motion to remand is dismissed.

Dismissed.

       Ark. R. App. P. — Civil 2 governs caminal cases pursuant to Ark. R. App. P.— Crim. 4(a).


author: Jim Hannah, Justice.

text:
    Frankie IRVIN v. STATE of Arkansas
    CR 00-1086
    49 S.W.3d 635
    Supreme Court of Arkansas
    Opinion delivered July 9, 2001

      J. Eric Hagler, P.A., by: J. Eric Hagler, for appellant.

      Mark Pryor, Att’y Gen., by: Misty Wilson Borkowski, Ass’t Att’y Gen., for appellee.
   Jim Hannah, Justice.

Appellant Frankie Irvin appeals his. conviction by a Desha County jury of aggravated robbery and theft of property for which he was sentenced to thirty years’ and fifteen years’ imprisonment respectively. On appeal, Irvin raises one issue, arguing that the trial court abused its discretion in failing to recuse. We affirm.

On April 3, 1996, Irvin was charged as an habitual offender with aggravated robbery, theft of property, and attempted capital murder, for his part in a November 13, 1995, robbery of a store operated by Bill Montgomery, who was a victim of the crime. Prior to trial, the prosecution dismissed the attempted-capital-murder charge but continued to pursue the remaining felony charges.

As early as March 6, 1997, Circuit Judge Sam Pope indicated in a letter to Irvin’s first defense counsel, A. Wayne Davis, that he was under the impression that a motion for continuance may have been meant as a motion for recusal based on an attached affidavit from Irvin asking for the judge’s recusal. In the judge’s letter to counsel, the judge requested that if such were the case, then Irvin should file a formal motion for the judge’s recusal.

On the night before trial in April 1997, Davis faxed a scathing motion to the circuit clerk’s office requesting the judge’s recusal. Irvin appeared the next day for trial, but Davis did not. Irvin requested a continuance until he could have an attorney present to represent him. After a hearing in chambers, the trial court ordered that Irvin proceed to trial without his attorney, and the court took evidence on the motion to recuse and denied the same. Apparently, the trial court believed that Davis’s failure to appear for trial was, in part, calculated by both Davis and Irvin as an attempt to get the case continued. Irvin, representing himself, was convicted on both charges and sentenced to 240 months in prison. Irvin appealed, and in a decision issued May 27, 1998, the Arkansas Court of Appeals reversed Irvin’s conviction finding that the trial court violated Irvin’s Sixth Amendment right to assistance of counsel at trial. See Irvin v. State, 62 Ark. App. 143, 972 S.W.2d 948 (1998). The court remanded the case for a new trial.

On remand, Irvin retained the services of attorney William McArthur. On November 2, 1998, the trial court held a routine pretrial hearing at which McArthur orally moved for the trial judge to recuse on the basis that the judge, while the elected prosecutor in that district, had previously prosecuted the defendant. The trial court denied the motion, finding that it had already ruled on that issue prior to the first trial and that because it had not been challenged on appeal by Irvin’s appellate attorney, it could not be raised again.

Irvin was tried a second time in this matter on March 16, 1999. On the morning of trial before the jury was brought in, Irvin’s counsel again requested that the trial judge recuse, based on the judge’s prior prosecutions of Irvin. In addition, defense counsel questioned Irvin regarding this motion, and Irvin testified that he believed the judge should recuse because he had been involved in approximately six prior prosecutions of Irvin. The trial court denied the motion finding that Arkansas case law does not require a judge in such a situation to recuse. The trial ended in a hung jury on March 18, 1999.

At a pretrial hearing on June 21, 1999, neither Irvin nor his attorney appeared for the hearing. The trial judge issued a bench warrant for Irvin’s arrest for his failure to appear. On August 30, 1999, another hearing was held at which the trial court indicated that McArthur, who was not present, had requested to be relieved of counsel due to Irvin’s failure to cooperate with him in the case. Irvin, who was present, indicated that he had not received any notice of the pretrial hearing for June 21, 1999, but that he wanted McArthur to continue to represent him. During this hearing, Irvin indicated that he wanted to retain McArthur again, but that he did not have the money to do so. Irvin requested that his bond be reinstated, but the court denied this request in part because of Irvin’s failure to appear on June 21, 1999. The court declined to relieve McArthur, in part because the trial court did not want Irvin to be without counsel during a pending video deposition, and again denied Irvin’s second request for bond until he had an attorney present. McArthur’s motion to be relieved as counsel was denied in writing on September 3, 1999.

On October 4, 1999, at a pretrial hearing, Irvin made an oral motion to the trial court to set bond as it had done prior to the other trials. No notice was given to the State, and the State recommended that bond be set in the amount of $75,000. On that same day, the court granted McArthur’s motion to be relieved as counsel, as Irvin had apparently hired Attorney Dale West to represent him. However, on October 6, 1999, the State filed a motion to reconsider the bond amount arguing that it had not been prepared for Irvin’s oral motion on October 4, and only afterwards found out that Irvin had charges pending against him in Arkansas County, Arkansas, and New Hampton, Iowa, where Irvin apparendy fled at some point in the prior proceedings. The State alleged in its motion that based on Irvin’s prior conduct, he was a flight risk. The State asked that bond be increased to $400,000, that Irvin have no contact with the victims in the case, and that he not be allowed to visit his father whose property is adjacent to the victims’s property.

A hearing was held on October 15, 1999, for the court to consider arguments on this motion. Irvin appeared without counsel because West apparently had decided not to represent him. As such, the trial court appointed public defender Gary Potts to represent Irvin. Potts, however, was not present at that hearing. Irvin told the court that he did not want Potts to represent him because Potts had refused in a prior case to file a motion for the judge’s recusal. The trial judge denied Irvin’s request, and Irvin then “fired” Potts. The trial court indicated that Irvin had the option to represent himself, but that even if he did that, Potts would remain to offer guidance in the case. Irvin then argued that Potts would have a conflict of interest representing him because his codefendant was represented by a public defender from the same office. Again, the court indicated that Potts would remain on the case unless Irvin hired a private attorney.

The State then presented its evidence on its motion to revoke or reset bond. This evidence indicated that Irvin had fled from police on two occasions, and that he was a flight risk. Irvin conducted his own cross-examinations of the witnesses. The trial court then ruled, over Irvin’s numerous objections and under threat by the court that Irvin’s mouth would be taped closed, that his bond would be set at $400,000. On October 21, 1999, the trial court entered an order modifying Irvin’s bail bond to $400,000. This order also indicated that the trial date was set for'December 9 and 10, 1999. In addition, the trial court appointed public defender Gary Potts to represent Irvin at trial. Irvin did not file a writ of certiorari challenging this modification of bond.

On November 3, 1999, Potts moved to be released as counsel on the case, citing in his motion that Irvin faded to turn over any of his prior attorneys’s previous records in the case because Irvin believed that Potts would not work in his best interest. Potts’s motion also indicated that Irvin claimed to have hired a private attorney, but would not release the name to Potts. Furthermore, Potts’s motion indicated that Irvin did not want Potts’s representation because Potts had been a prosecutor in Monticello Municipal Court while the trial judge was the elected prosecuting attorney in that district.

Irvin, himself, filed a pro se motion for the trial judge’s recusal on November 3, 1999. In his motion, Irvin alleged that the trial judge was biased, prejudiced, and “less than fair and impartial” based on the judge’s prior ruling in the first trial requiring Irvin to represent himself. He also stated that the judge abused his discretion in denying Irvin a continuance to find new counsel on April 17, 1997, and that the judge attributed Attorney Davis’s “dirty language” in the first motion to recuse to Irvin, and that'this was unfair. Furthermore, Irvin’s attached affidavit indicated that he believed the judge had been unfair by setting his bond at $400,000 on October 15, 1999. Five days later, Irvin’s new attorney, Jack Bell, filed a supplemental motion for recusal on November 8, 1999. This motion adopted Irvin’s pro se motion, and included as additional grounds that the trial judge, during his term as prosecuting attorney in the 10th Circuit, had prosecuted Irvin on more than one occasion for various matters. These motions were again denied by the trial court.

At a prehearing on January 31, 2000, Irvin’s attorney again asked that the trial judge recuse. The trial court again denied the motion.

This case finally proceeded to trial, and Irvin was convicted and sentenced. He filed his notice of appeal on February 29, 1999.

In his only issue on appeal, Irvin argues that the trial court abused its discretion in failing to recuse. Irvin raises several points to attempt to show that the trial judge was biased and prejudiced against him. He argues that the judge showed bias where the court required him to represent himself at the first trial, the judge had prosecuted Irvin several times as the elected prosecuting attorney in that district, the judge indicated that he did not believe that Irvin had not gotten notice of a prehearing on June 21, 1999, the judge increased the amount of bond from $75,000 to $400,000, the judge denied his right to an attorney at the bond hearing, and the judge dealt harshly with him at this hearing, at one point telling him to “shut up” and that he would tape Irvin’s mouth closed if Irvin continued with his outbursts.

The State responds that only two issues were raised by Irvin below that are preserved for review here, those being the issues on the denial of Irvin’s right to counsel at his first trial and the trial judge’s prosecutions of Irvin when the judge was the prosecuting attorney in the district. The State notes, however, that none of the other alleged errors by the trial court were raised in the recusal motions below to preserve them for appeal. Regardless, on those issues, the State argues that the trial court did not abuse its discretion in failing to recuse because none of the judge’s statements to Irvin over the course of the prosecution, including the threat of taping Irvin’s mouth closed, occurred in front of the jury' to prejudice Irvin in their eyes, nor did these statements indicate the trial judge’s feelings, other than frustration, towards Irvin. Regarding the issue of the increase in the bond, the State argues that the proper vehicle to challenge a bond revocation is through a writ of certiorari, and that issue has been waived. Regardless, the State argues that the trial court was acutely aware of Irvin’s right to counsel throughout the proceedings, and, in fact, continued the case at several points to allow Irvin to retain counsel. Overall, the State argues that Irvin cannot show any bias on the judge’s part that prejudiced him in this case.

The Arkansas Constitution, Article 7, § 20, as well as the Arkansas Code of Judicial Conduct, Canon 3(c), provide that judges must refrain from presiding over cases in which they might be interested and must avoid all appearances of bias. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993). However, a judge is not required to recuse because of his or her life experiences. Reel v. State, 318 Ark. 565, 886 S.W.2d 615 (1994). In addition, there exists a presumption of impartiality. Turner v. State, 325 Ark. 237, 926 S.W.2d 843 (1996). The decision to recuse is within the trial court’s discretion, and it will not be reversed absent abuse. Ayers, supra; Kail v. State, 341 Ark. 89, 14 S.W.3d 878 (2000); Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court, and the burden is on the party seeking to disqualify. To decide whether there has been an abuse of discretion, we review the record to see if prejudice or bias was exhibited. Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998); Dolphin v. Wilson, 328 Ark. 1, 942 S.W.2d 815 (1997); Reel, supra.

A trial judge’s development of opinions, biases, or prejudices during a trial do not make the trial judge so biased as to require that he or she recuse from further proceedings in the case. Noland v. Noland, 326 Ark. 617, 932 S.W.2d 341 (1996); Allen v. Kizer, 294 Ark. 1, 740 S.W.2d 137 (1987). Absent some objective demonstration by the appellant of the trial judge’s prejudice, it is the communication of bias by the trial judge which will cause us to reverse his or her refusal to recuse. Noland, supra; Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). The mere fact of adverse rulings is not enough to demonstrate bias. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). Whether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge. Matthews, supra; Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966); Narisi v. Narisi, 229 Ark. 1059, 320 S.W.2d 757 (1959). The reason is that bias is a subjective matter peculiarly within the knowledge of the trial judge. Id.

Initially, we note that Irvin’s allegations of bias are based on remarks made by the trial judge during various pretrial hearings. However, while the abstract contains those hearings, it does not contain any part of his trial. This, in and of itself, necessarily limits our review. When the judge’s communications are the basis for an allegation of bias, it is necessary to view the communications that the judge makes to, or in front of, the jury. Walker, supra. Statements made before the jury is impaneled and in no way communicated to the jury cannot constitute bias or prejudice. Id. As such, because it is the appellant’s duty to present a record on appeal demonstrating error, and the record is limited to that which is abstracted, see Johnson v. State, 342 Ark. 357, 28 S.W.3d 286 (2000), we can only review the statements made by and actions of the judge during the pretrial hearings, as that is all that is abstracted. In Walker, for example, the trial court made several strong remarks prior to empaneling the jury, but we held no showing of disqualifying prejudice had been shown, pointing out that the fact that a trial judge may have a personal opinion as to the merits of the case does not make the trial court so biased and prejudiced as to require his disqualification, and commenting that the “mischief occurs when the trial court communicates to the jury by word or deed a personal bias, prejudice or animus toward the accused, causing the accused to be denied a fair and impartial trial.” Walker, 241 Ark. at 309. Certainly, the jury could not have been swayed by any of the trial court’s remarks because the jury was not present during any of those statements. Therefore, Irvin cannot show that the trial court’s remarks prejudiced him in front of the jury.

As such, we must then consider whether any of the trial court’s pretrial actions were prejudicial to Irvin. In reviewing Irvin’s complaints of bias by the trial court, his claims have no merit. Regarding Irvin’s representation of himself at the first trial, this court has been resolute in holding that reversal and remand due to error by the trial judge do not automatically require recusal of the trial judge who erred. Walls v. State, 341 Ark. 787, 20 S.W.3d 322 (2000); Wilson v. Neal, 341 Ark. 282, 16 S.W.3d 228 (2000). A judge has a duty to sit on a case unless there is a valid reason to disqualify. Carton v. Missouri Pac. R.R., 315 Ark. 5, 865 S.W.2d 635 (1993). As such, just because the court of appeals reversed and remanded this case after Irvin’s first trial and conviction does not point to bias or prejudice on the part of the trial judge after the case was remanded. In Walls, for example, this court dealt with a recusal motion based on statements made to the press by the trial judge. There, after the defendant had been convicted, the trial judge, prior to Walls’s sentencing, made statements to the press regarding the defendant’s case and the effects of the defendant’s actions. On appeal, this court affirmed the convictions but remanded for resentencing. On remand, the same trial judge heard the action and modified the sentences. The defendant presented a motion for recusal, which was denied. On second appeal from resentencing, this court decided that the judge’s decision not to recuse was not an abuse of discretion. This court stated:

In the instant case, mere suspicion or conjecture that the judge’s heart and mind were so tainted by events that occurred more than a year earlier that he could not view the matter afresh on remand is not enough. We take as a given that a judge is able to preside over a matter on remand with a clean slate, absent proof or some indication to the contrary. The record in this matter simply does not support Walls’s contention that Judge Hanshaw was biased towards him at the resentencing. For all of these reasons, we hold that the trial judge did not abuse his discretion in declining to recuse in this matter.

Walls, 341 Ark. at 793.

Such is the case here where Irvin has wholly failed to show that any of the trial court’s actions or statements indicate that he was biased or prejudiced towards Irvin based on the reversal and remand for the court’s error in the first trial. To the contrary, the record indicates that the trial judge was particularly accommodating to Irvin over the course of the subsequent proceedings. The court was highly cognizant of the fact that Irvin needed an attorney during the pretrial proceedings, and delayed several hearings and reset several trial dates to allow Irvin to retain a private attorney. Furthermore, the court denied several attorneys’s motions to be dismissed as counsel so that Irvin would have counsel at the proceedings. Irvin’s conduct actually made this very difficult for the court in that Irvin appeared before the court without counsel because of Irvin’s failure to hire counsel or accept a court-appointed attorney.

Unless there is an objective showing of bias, there must be a communication of bias in order to require the recusal for implied bias. State v. Clemmons, 334 Ark. 440, 976 S.W.2d 923 (1998). No such showing was made here. In Clemmons, for example, this court concluded that the fact that the defendant threatened the trial judge was not enough to raise questions of bias and prejudice. The court stated, “Such reasoning, if adopted, would mean a defendant, by misbehaving in court or confronting the judge, could force the judge’s recusal. We have held that it is impermissible for a party or counsel to create an infirmity for purposes of requiring a judge’s recusal. See Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998).” As the record indicates in this case, Irvin retained several attorneys, and then either refused to cooperate with them or fired them, often just prior to trial. The trial court’s requirement that Irvin proceed was merely the court’s attempt at maintaining order and control of his own court despite the defendant’s apparent attempts to delay prosecution of the case.

On the second issue, Irvin argues that the judge should have recused because the judge had formerly prosecuted Irvin while serving as the elected prosecuting attorney in the 10th Circuit. In Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997), the defendant argued that the trial judge should have recused from considering his posttrial petition because the trial judge, before he assumed the bench, prosecuted him on an unrelated matter ten years prior to the filing of the charges on which he was presendy incarcerated. Fie also argued that the trial judge gained additional knowledge about him when the trial judge represented him on a civil matter, and that the judge played a role in Beshears’s return from the Act 309 program in Lawrence County. Beshears contended that these circumstances warranted the trial judge’s recusal in order to avoid the appearance of impropriety. This court, however, disagreed, finding that despite these facts, the defendant could not point to any exhibition of bias or prejudice on the part of the trial court. This ruling indicates that it is not, in and of itself, error for a trial judge to preside over a case involving a defendant whom the judge previously prosecuted. See also, Green v. State, 21 Ark. App. 80, 729 S.W.2d 17 (1987) (citing Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982)). Here, Irvin offered no evidence that the trial judge was biased or prejudiced against him merely because he had acted as prosecutor in Irvin’s prior prosecutions. This bare fact proves nothing and, absent any actual showing of bias or prejudice, cannot suffice to require the trial judge to recuse.

Even though the following additional matters were not raised below, because we review the record to see if prejudice or bias was exhibited, we will also consider Irvin’s additional allegations of bias. See Black, supra; Dolphin, supra; Reel, supra. Regarding the trial court’s disbelief of Irvin’s assertion that he had not received notice of the June 21, 1999, prehearing, this does not itself show bias. It merely shows disbelief on the judge’s part that Irvin, who had received prior notices at that address, had not received this notice although he was made aware at the mistrial that his case had been reset for trial in late June 1999. Whether the court believed Irvin is of no concern because Irvin cannot show that the trial court’s disbelief of Irvin was ever communicated to the jury to prejudice him in any way.

Next, the trial court’s resetting of bond from$75,000 to $400,000 was based on a legitimate concern that Irvin would flee. The State presented evidence that Irvin had fled law enforcement on two prior occasions, and that he had been arrested in Iowa during the time that he was supposed to be present in Arkansas awaiting this prosecution in Desha County and another in Arkansas County. The court determined that these facts were sufficient here to increase or deny bond. Furthermore, although Irvin argues that this increase in bond and the court’s denial of his request to be released without bond indicates the trial judge’s bias against him, Irvin’s argument is not persuasive. As the State notes, this court treats an appeal from the denial of bail as a petition' for a writ of certiorari. Meeks v. State, 341 Ark. 620, 19 S.W.3d 25 (2000); Larimore v. State, 339 Ark. 167, 3 S.W.3d 680 (1999); Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992) (citing Thomas v. State, 260 Ark. 512, 542 S.W.2d 284 (1976)); Perry v. State, 275 Ark. 170, 628 S.W.2d 304 (1982). This court has stated that a writ of certiorari is the appropriate vehicle for relief in bail proceedings. Larimore, supra. Here, however, Irvin did not petition for a writ of certiorari from the setting of the bond at either the $75,000 level or the $400,000 level. Therefore, the proper vehicle for challenging this increase was abandoned. In addition, adverse rulings against a party are not enough to show bias or prejudice. Gates, supra.

Regarding the trial court’s proceeding at the bond hearing where Irvin was not represented by counsel, Irvin cannot show that he was prejudiced by this because he has not shown that the amount was unfair or that this amounted to pretrial punishment. The trial court was faced with a dilemma: wait until Irvin retained counsel to consider resetting the bond or proceed with the bond reconsideration. Had the court waited, the proceedings would have been at Irvin’s mercy until he eventually retained an attorney. This delay is evidenced by the fact that although Irvin advised the trial court on two occasions that he had spoken to attorneys and was waiting hear back from them, over six weeks had passed from those assurances until the bond reconsideration hearing during which time Irvin had not retained an attorney. In addition, the trial court attempted to appoint Potts to represent Irvin, but Irvin “fired” Potts immediately. As such, the trial court proceeded with the bond hearing instead of subjecting the system to Irvin’s dilatory tactics. Again, however, Irvin cannot show that the amount of bond was unjustifiable based on the facts presented by the State at that hearing.

Finally, the trial court’s statement to Irvin that he would tape closed Irvin’s mouth if he did not stop talking at the hearing on the bond reconsideration does not warrant reversal. The State is correct that the comment demonstrated nothing more than the judge’s frustration with Irvin and his interruptions and the judge’s attempt to maintain the decorum and dignity of the court proceeding. This exchange was brief, and it was not done in the presence of a jury. Therefore, it cannot constitute bias or prejudice requiring disqualification. Walker, supra.

There is no evidence that the trial judge treated Irvin or his defense counsel improperly, that the trial court presided over Irvin’s trial in an unfair or impartial manner, that the trial judge made any improper rulings as to Irvin during the trial, or that the trial judge exhibited any bias or prejudice toward Irvin during the trial. Irvin did not include any part of the trial in the abstract.

Affirmed.