author: DONALD L. Corbin, Justice.

text:
    Tim LEATHERS, Commissioner of Revenue and Deputy Director of the Department of Finance And Administration for the State of Arkansas v. Ed and Jane WARMACK
    00-35
    19 S.W.3d 27
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      Philip Purifoy, Chancellor;

      Michael J. Wehrle, for appellant.

      Keil & Goodson, by: John C. Goodson; Norton & Burgess, by: Fred R. Norton, Jr.; Patton, Haltom, Roberts, McWilliams & Greer, L.L.P., by: George L. McWilliams and Kirk Patton, for appellees.
   DONALD L. Corbin, Justice.

This case involves the border-city icexemption e. residents of Texarkana, Arkansas. Appellant Tim Leathers, Commissioner of Revenue and Deputy-Director of the Arkansas Department of Finance and Administration (DFA), appeals the Miller County Chancery Court’s judgment that Appellees Ed and Jane Warmack were exempt from state income taxes for the years 1992, 1993, and 1994. DFA’s sole point for reversal is that the chancellor erred in finding that the Warmacks were residents of Texarkana during the period in question. Our resolution of this appeal requires us to construe the term “resident,” within the context of the border-city tax exemption. Because this issue is one of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We affirm the chancellor’s judgment.

The record reflects that the Warmacks were audited by DFA for the calendar tax years 1992, 1993, and 1994. The Warmacks claimed that they were exempt from individual income taxes for those years under the border-city tax exemption, as provided in Ark. Code Ann. §§ 26-52-601 to -607 (Repl. 1997). DFA concluded that the Warmacks were not residents of Texarkana and assessed income tax against them in the amount of $808,686.00, plus interest of $209,950.25. The Warmacks paid the taxes and interest under protest and petitioned the chancery court to review DFA’s decision. The sole issue in the chancery court was whether the Warmacks had established residency in Texarkana during the audit period. After hearing considerable testimony and receiving numerous exhibits, the chancellor determined that the Warmacks were residents of Texarkana and, thus, entitled to the border-city tax exemption.

For its sole point for reversal, DFA argues that the greater weight of the evidence demonstrates that the Warmacks were not residents of Texarkana during 1992, 1993, and 1994. As such, DFA contends that the Warmacks failed to prove Texarkana residency beyond a reasonable doubt. DFA contends further that the evidence demonstrated that all through the audit period, the Warmacks continued to reside at their home in Fort Smith. In support of this, DFA points to the facts that the Warmacks maintained their memberships in a Fort Smith country club, continued their banking and medical relationships in Fort Smith, and purchased the “lion’s share” of their goods and services in Fort Smith. DFA also relies on the fact that the Warmacks’ base of business operations continued to be in Fort Smith during the audit period.

Our standard of review in tax-exemption cases is well established. Tax exemptions are strictly construed against the exemption. Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995); Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994). A strong presumption operates in favor of the taxing power, and the taxpayer must establish an entidement to a tax exemption beyond a reasonable doubt. Id. This standard is applicable to claims of exemption from income tax. See Morgan v. Cook, 211 Ark. 755, 202 S.W.2d 355 (1947). On appeal, we review tax-exemption cases de novo on the record, but we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Technical Servs., 320 Ark. 333, 896 S.W.2d 433. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999). We give due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded their testimony. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999). With this standard in mind, we review the chancellor’s findings of fact.

The chancellor’s order reflects that Ed Warmack was in the business of developing shopping malls and warehouses and then leasing them out to tenants such as Sears, Dillard’s, and J.C. Penney. Ed owned approximately sixty properties in twelve states, which were developed between 1968 and 1990. Ed’s business is family owned and operated, with Ed and his four sons constituting the upper management of the business. Ed originally operated his business out of Fort Smith, where he had the largest concentration of leased property. By 1989, however, the Fort Smith properties had been completely developed. That same year, Ed made the decision to move his residence and business from Fort Smith to Texarkana. Ed owned a shopping mall in Texarkana, Texas, and forty-five acres of “outparcel” land, consisting of the property surrounding the mall. In 1989, the outparcel land in Texarkana was largely undeveloped. The chancellor found that Ed’s decision to move to Texarkana was motivated by the desire (1) to develop the outparcel properties in Texarkana, and (2) to take advantage of the border-city tax exemption.

In December 1989, the Warmacks resided in a rental duplex in Texarkana, and they lived there until May 1992. In June 1992, the Warmacks moved from the rental duplex to an apartment, where they resided until October 1993. In October 1993, the Warmacks purchased a duplex in Texarkana and resided in one side of the unit until June of 1996. During the audit period, the Warmacks also owned a home in Fort Smith. In 1990, the Warmacks offered their Fort Smith home for sale through a local realtor, Jimmy Taylor. According to Taylor, the house, which had approximately 7,000 square feet, was constructed a lot like a shopping center and lacked curb appeal. The house also contained asbestos. To properly market the house, according to Taylor, it was prudent to keep it furnished and to maintain the utilities, the yard, the house cleaning, and the alarm system. The house was originally offered at $590,000, and was shown by Taylor numerous times beginning in 1990. There were times when Jane Warmack traveled from Texarkana to Fort Smith to get the house ready to show. Taylor was not successful in selling the house during the audit period. The house eventually sold for a significandy reduced price in 1997.

It is DFA’s contention that the Warmacks were actually residents of Fort Smith during the entire three-year audit period. DFA asserted that a comparison of the utility usage at the Fort Smith house to the usage at the residences in Texarkana demonstrates that the Warmacks really lived in Fort Smith during the audit period. DFA compiled a journal in which it purported to trace the Warmacks’ whereabouts for the audit period. The journal revealed that the Warmacks may have been away from Texarkana approximately forty-five percent of each year. The journal could not, however, account for their whereabouts during 208 days in 1992, 207 days in 1993, and 198 days in 1994.

The chancellor found that the Warmacks’ absences from Texarkana were for legitimate business, vacation, or medical reasons. The chancellor found further that during the three-year period, the Warmacks traveled to over 120 cities and numerous foreign countries; however, the undisputed evidence showed that the Warmacks were in Texarkana for over fifty percent of each year during the audit period. Additionally, the chancellor was not persuaded by DFA’s comparison of utility usage, largely due to the fact that the Fort Smith house had considerably more square footage than the Texarkana residences. The chancellor also found that DFA’s comparison of utility usage of similar Texarkana residences was not persuasive, as DFA offered little or no evidence of the occupancy days, the number of residents, or the lifestyles of the occupants of the similar units.

DFA particularly relied on the fact that during the audit period, whenever the Warmacks would travel to Fort Smith, they would stay in their house. This was admitted by the Warmacks, but they contended that as long as the house had not sold, it made sense to stay there, rather than at a hotel, during their visits to Fort Smith. The chancellor found that the Warmacks had made Fort Smith their home for over forty years, during which period of time they developed extensive business and social relationships in the area. Additionally, the Warmacks had developed banking and medical relationships in Fort Smith and continued these relationships after they moved to Texarkana. The chancellor determined that the continued maintenance of these long-time business, social, medical, and banking relationships was legitimate, particularly in light of the fact that the base of their business operations continued to be in Fort Smith throughout the three-year audit period. The chancellor found further that because the house had not sold and the Warmacks had legitimate reasons for being in Fort Smith, their stays at the house were reasonable under the circumstances and were not inconsistent with their residency in Texarkana.

The chancellor found persuasive the testimony of Dr. Charles Edward Venus, a consulting economist, who gave expert testimony for the Warmacks. The chancellor found that Dr. Venus’s expert opinion supported the fact that Ed Warmack had legitimate business reasons for being in Fort Smith from time to time during the audit period. Similarly, the chancellor found that Dr. Venus’s analysis of the management of the Warmacks’ business supported their testimony that they were required to travel extensively for business reasons. The chancellor was also persuaded by Dr. Venus’s analysis of the interrelationship between social and business associations required for successful business operations of the type owned by the Warmacks. The chancellor found that it was not unreasonable, based on Dr. Venus’s expert testimony, that the movement of the Warmacks’ business from Fort Smith to Texarkana took place over several years, including the audit period, and required the attention of Ed Warmack in Fort Smith. The chancellor concluded that Dr. Venus’s expert testimony suggested that the Warmacks’ absences from Texarkana during the audit period were not inconsistent with their residency in Texarkana.

The chancellor also relied on the testimony of Joe Neal Oliver, a Texarkana restauranteur and neighbor of the Warmacks, who stated without contradiction that he had observed the Warmacks in Texarkana during the audit period. Oliver stated that the Warmacks were customers of his restaurants. He also stated that he would pass by the Warmacks’ first Texarkana residence three or four times a day and that he would occasionally stop and converse with Ed Warmack. He stated that Ed had spoken to him about his desire to purchase a house in Texarkana and asked about a good location. Oliver testified that he would see Ed’s vehicles parked at the Texarkana residences on the weekends, but not as much during the week. Oliver explained that he made a point to observe the different kinds of vehicles that Ed drove, as he was aware that Ed had a deal with a local dealership to display the dealer’s cars in the Texarkana mall in exchange for being allowed to drive new vehicles.

In addition to the foregoing facts, the chancellor found that during the audit period, (1) the Warmacks were registered to vote and had voted in Miller County; (2) they assessed and paid personal property taxes in Miller County; (3) their drivers’ licenses reflected their Texarkana addresses; (4) Jane Warmack received magazines at the Texarkana addresses; and (5) Jane Warmack made only three purchases from Fort Smith grocery stores during the three-year period. The chancellor found that the grocery and gas purchases made by Ed Warmack in Fort Smith were all business expenses that were not challenged as such by DFA during its audit. The chancellor also found that the retention of Warmack Aviation at the Fort Smith airport was not inconsistent with the Warmacks’ residency in Texarkana. The chancellor observed that the family business remained in Fort Smith during the audit period and that the flight time between Texarkana and Fort Smith, which was less than twenty minutes, imposed no inconvenience to the Warmacks’ business travel.

The chancellor concluded that based on the totality of the circumstances, the Warmacks proved beyond a reasonable doubt that they were residents of Texarkana during the years of 1992, 1993, and 1994. The chancellor found that the questions raised by DFA, regarding the Warmacks’ absences from Texarkana, the amount of time they spent in Fort Smith, the delayed sale of their Fort Smith house, the difference in utility consumption between the house in Fort Smith and the much smaller rental units in Texarkana, “all evaporate with reasonable and almost uncontradicted explanation.” We cannot say that the chancellor’s ruling was clearly erroneous.

The border-city tax exemption was created by the General Assembly to equalize the income tax burdens on residents of Texarkana, Arkansas, and Texarkana, Texas, due to the fact that Texas does not impose a state income tax. See section 26-52-601. DFA Individual Income Tax Regulation 1.26-51-403(b)(13) was promulgated to implement this tax exemption. That regulation defines “Texarkana, Arkansas, Resident” as “an individual who maintains a place of abode within the city limits of Texarkana, Arkansas.” The term “place of abode” is not defined within the border-city regulations, but it is defined in DFA Regulation 2.26-51-102(9), which addresses the issue of whether a person is a resident of the State of Arkansas.

Under regulation 2.26-51-102(9), a person is a resident of Arkansas if he or she (1) is domiciled in the state, or (2) maintains a permanent place of abode within Arkansas and spends an aggregate of more than six months of the year within Arkansas. Subsection (a) provides in part:

Domicile is comprised of an act coupled with an intent. A domicile is acquired by (1) physical presence at a place coinciding with (2) the state of mind (that is, intent) of regarding the place as a permanent home.

Subsection (b) defines the term “place of abode” as follows:

Place of abode means a place where a person has established a permanent home, even though such person may be absent therefrom for a long period of time. A temporary home or residence would not be considered a place of abode, as there must be at lease some degree of permanence....
Place of abode and residence are considered to mean roughly the same thing. However, domicile and residence are not considered to be synonymous. Residence denotes only an act (the act of residing), while domicile denotes an act (the act of residing) coupled with the intent that the residence be a permanent home. The distinction between domicile and place of abode is that although a person can have several homes (or places of abode) at one time, only one of those homes can be the person’s domicile. The home that the person intends or considers to be their permanent home (as in home base) would be the domicile. [Emphasis added.]

Subsection (c) of regulation 2.26-51-102(9) provides that where it is not clear that the person is domiciled or maintains a place of abode in Arkansas, a residency determination may only be made after thoroughly reviewing the facts on a case-by-case basis. Various factors should be considered in making this determination, such as the party’s address used on federal income tax returns, utility bills, voter registration, driver’s license, vehicle registration, and property assessments. Under this case-by-case analysis, a taxpayer’s claim of intent will not be accepted when the circumstances point to a contrary conclusion. Moreover, when acts are inconsistent with a taxpayer’s declarations, the acts will control.

Under our case law, the distinction between the terms “domicile” and “residence” is often subtle; however, this court has consistently held that the terms are not synonymous. In Re: Adoption of Samant, 333 Ark. 471, 970 S.W.2d 249 (1998) (citing Stephens v. AAA Lumber Co., 238 Ark. 842, 845, 384 S.W.2d 943, 945 (1964)). A person’s “residence” is the place of actual abode, not a home that a person expects to occupy at some future time. Id. This court has defined “place of abode” as “something more than a place of temporary sojourning,” implying a degree of permanence. Shinn v. Heath, 259 Ark. 577, 587, 535 S.W.2d 57, 62 (1976) (quoting Cravens v. Cook, 212 Ark. 71, 74, 204 S.W.2d 909, 910 (1947)). “[A] given place may be a ‘place of abode’ of a party, though he may be actually absent therefrom for a long period of time.” Id. No particular length of time is necessary to establish residence. See Cole v. Cole, 233 Ark. 210, 343 S.W.2d 561 (1961); Smith v. Smith, 219 Ark. 876, 245 S.W.2d 207 (1952). Rather, the key consideration is whether the place is an “established abode, fixed permanently for a time for business or other purpose, although there may be an intent existing all the while to return at some time or other to the true domicile[.]” Krone v. Cooper, 43 Ark. 547, 551 (1884). See also Davis v. Holt, 304 Ark. 619, 804 S.W.2d 362 (1991). Each case must be decided on its own facts. Id.

On the other hand, this court has long recognized that “domicile has a broader meaning than residence, and includes residence.” Shinn, 259 Ark. at 586, 535 S.W.2d at 61 (quoting Jarrell v. Leeper, 178 Ark. 6, 7, 9 S.W.2d 778, 778 (1928)). See also Krone, 43 Ark. 547. Thus, “domicile” requires an actual residence plus the intent to remain in a particular place. Samant, 333 Ark. 471, 970 S.W.2d 249; Martin v. Hefley, 259 Ark. 484, 533 S.W.2d 521 (1976). “No word, it is said, is more nearly synonymous with domicile than home, and it is generally agreed that a man can have but one home or domicile, but that he may have more than one place of residence.” Krone, 43 Ark. at 549. Thus, like residence, no particular length of time is required to establish one’s domicile, “but there must be residence attended by such circumstances surrounding its acquirement as to manifest a bona fide intention of making it a fixed and permanent place of abode.” Moon v. Moon, 265 Ark. 310, 313, 578 S.W.2d 203, 205 (1979). The intent to abandon one’s domicile and take up another must be ascertained from all the facts and circumstances of the particular case. Morris v. Garmon, 285 Ark. 259, 686 S.W.2d 396 (1985). The factfinder is not bound to accept claims of intent when the circumstances point to a contrary conclusion; they cannot prevail unless borne out by acts. Charisse v. Eldred, 252 Ark. 101, 477 S.W.2d 480 (1972). “When acts are inconsistent with a person’s declarations, the acts will control, and declarations must yield to the conclusions to be drawn from the facts and circumstances proved.” Id. at 105, 477 S.W.2d at 482.

In the present case, we conclude that under either the definition of “domicile” or “residence,” as set out in this court’s holdings or DFA’s regulations, the record supports the chancellor’s determination that the Warmacks were residents of Texarkana during the audit period. Much of the evidence in this case turned on the credibility of the witnesses and their testimony, and we give due deference to the chancellor’s credibility determinations. The chancellor specifically found that although the Warmacks were away from Texarkana for extended periods of time, their absences were for legitimate business, medical, or personal reasons. Moreover, despite their long absences, the uncontradicted evidence demonstrated that the Warmacks were at home in Texarkana more than fifty percent of the time during those three years. Furthermore, the evidence showed that the Warmacks were registered to vote and had voted in Miller County, that they assessed and paid personal property taxes in Miller County, and that their drivers’ licenses reflected their Texarkana addresses. Perhaps more significant is the testimony ofjoe Neal Oliver that during the period in question, the Warmacks were patrons of his restaurant and he often saw Ed Warmack’s vehicles parked at the Texarkana residences. Fie also stated that he periodically saw Ed Warmack either coming home or going out, and he would stop and converse with him. Accordingly, we cannot say that the chancellor was clearly erroneous in finding that the Warmacks were residents of Texarkana during 1992, 1993, and 1994. We thus affirm the chancellor’s judgment.


source: Caselaw Access Project

license: Public Domain

text:
    John Michael MEEKS v. STATE of Arkansas
    CR 00-303
    19 S.W.3d 25
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      John S. Patterson, Judge;

      Laws & Murdoch, P.A., by: Ike Allen Laws, Jr., for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

This is an interlocutory appeal ice. Pope County Circuit Court’s denial of postconviction bail. Appellant’s only point for reversal is that Ark. R. App. P. — Crim. 6(b)(3) is unconstitutional because it prohibits persons convicted of certain crimes from being released on bond pending appeal. Our jurisdiction of this matter is pursuant to Ark. Sup. Ct. R. l-2(b)(l). We find nb merit and affirm.

We treat an appeal from the denial of bail as a petition for a writ of certiorari. 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, 339 Ark. 167, 3 S.W.3d 680. In Foreman v. State, 317 Ark. 146, 875 S.W.2d 853 (1994), this court stated:

Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy, and it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Lupo v. Lineberger, 313 Ark. 315, 855 S.W.2d 293 (1993). A demonstration of plain, manifest, clear, and gross abuse of discretion is essential before this court will grant a petition for writ of certiorari. Shorey v. Thompson, 295 Ark. 664, 750 S.W.2d 955 (1988).

Id. at 148, 875 S.W.2d at 854 (1994). Accordingly, we will treat Appellant’s appeal as a petition for a writ of certiorari.

The record reflects that on October 13, 1999, Appellant John Michael Meeks was convicted of one count of rape, a Class Y felony, in violation of Ark. Code Ann. § 5-14-103 (Repl. 1997). Appellant was sentenced to a term of seventeen years in the Arkansas Department of Correction. An appeal of that conviction was timely filed with the Arkansas Court of Appeals. After filing his notice of appeal, Appellant filed a motion requesting bail pending a determination of his appeal. The trial court granted Appellant a hearing on his motion but found that under Rule 6(b)(3) it had no discretion to allow bail.

Before considering the merits of Appellant’s argument, we must address a procedural issue raised by the State. The State argues as an initial point that Appellant is barred from proceeding with this appeal because he failed to include a notice of appeal of his conviction in the record submitted to this court. Specifically, the State alleges that Appellant lacks standing to complain of his denial of bail on appeal because he has failed to demonstrate that he suffered an injury. We disagree. The trial court’s order denying bail stated that Appellant had timely filed a notice of appeal. Moreover, Appellant filed a motion to supplement the record with the notice of appeal, and this court granted his motion. Therefore, we are satisfied that Appellant has standing to raise an argument regarding the denial of bail pending appeal.

Having determined that the State’s procedural argument is without merit, we now turn to the merits of Appellant’s argument on appeal. For reversal, Appellant argues that Rule 6(b)(3) is unconstitutional. The State contends that Appellant’s argument on appeal is meritless because there is no constitutional right to bail. The State is correct in its assertion that there is no constitutional right to bail. Article 2, § 8, of the Arkansas Constitution provides a right to bail only in preconviction situations. Nothing in our constitution or the United States Constitution guarantees a person convicted of a crime the right to bail pending appeal. In fact, at common law, the right to bail pending appeal was a matter of judicial discretion. Lane, Smith, & Barg v. State, 217 Ark. 428, 230 S.W.2d 480 (1950). This common-law rule was modified by Act 3 of 1984, which provided the right to bail pending appeal in certain cases only. Act 3 was struck down by this court in Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994), as it conflicted with rules promulgated by the court. Even though the Act was struck down by this court, the language in the current version of Rule 6(b)(3) closely traces the language of that Act. Rule 6(b)(3) provides:

When the defendant has been found guilty, pleaded guilty, or pleaded nolo contendere to murder in the first degree, rape, aggravated robbery, or causing a catastrophe, or kidnapping or arson when classified as a Class Y felony, and he has been sentenced to death or imprisonment, the trial court shall not release him on bail or otherwise, pending appeal or for any reason.

Appellant, in the point heading of his brief, asserts that this rule is unconstitutional in that it prohibits release on appeal in certain cases, without providing a hearing, thus depriving him of his due-process rights under the 5th Amendment of the United States Constitution. A review of Appellant’s argument in its entirety, reveals that he bases his challenge to the constitutionality of Rule 6(b)(3) on the faulty premise that the rule is superseded by fe feral provisions governing bail on appeal. Appellant cites no authority in support of his novel proposition. He simply claims that under federal law he is entitled to a hearing. This argument is without merit.

This court has stated that it is bound by its own set of criminal procedure rules. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995) (citing Vinston v. Lockhart, 850 F.2d 420, 424 (1988)). In Grinning, this court rejected the appellant’s contention that she was entitled to a twelve-member jury panel under the United States Constitution because there was no federal rule binding in state courts that required a twelve-member jury panel. Id. In so holding, the court noted that the appellant was tried in state court for a state crime and that there were no federal issues presented by the appeal. Likewise, in Vinston, the Eighth Circuit Court of Appeals rejected the appellant’s contention that he had a right to a twelve-member jury panel pursuant to a federal rule of criminal procedure. Id. at 423. Here, we have an Appellant who was convicted in state court for a violation of a state statute. He is seeking bail while his case is on appeal to a state appellate court. Thus, our State rules governing criminal procedures are applicable, not the federal rules. Accordingly, Appellant’s argument is without merit.

Affirmed.


author: DONALD L. Corbin, Justice. TOM Glaze, Justice,

text:
    STATE of Arkansas v. Terry Lynn GUTHRIE
    CR 99-1472
    19 S.W.3d 10
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      Tom J Keith, Judge;

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen. and Michael C. Angel, Asst. Att’y Gen., for appellant.

      Marshall N. Carlisle, for appellee.
   DONALD L. Corbin, Justice.

This is an interlocutory appeal brought by tice. pursuant to Ark. R. Crim. P. 3(a)(1). For reversal, the State argues that the trial court’s order was clearly against the preponderance of the evidence because there was probable cause to support the traffic stop "of Appellee Terry Lynn Guthrie. As it is required to do pursuant to Rule 3(c), the Attorney General maintains that the correct and uniform administration of the criminal law requires our review of the trial court’s suppression order. We disagree.

The record reflects that on February 21, 1999, at approximately 3:16 a.m., Gentry Police Officer David Bates witnessed Guthrie pulling out of the driveway at Jackie’s Beauty Shop onto Highway 12. Officer Bates continued down Highway 12 until he reached the Gentry city limits and then turned around. He initially indicated that there was no reason for him to be suspicious when he first noticed Guthrie attempting to pull out of the driveway. Upon redirect, however, Officer Bates testified that he suspected Guthrie may have been an impaired driver because of the way he attempted to pull out of the driveway at the beauty shop.

After Officer Bates turned around, he came into contact with Guthrie a second time. He stated that while following Guthrie along the highway, he noticed Guthrie cross the center fine. Officer Bates initially stated that Guthrie was approximately one foot over the center line. Upon examination by the court, however, the officer admitted that he was unsure of exactly how far Guthrie had traveled over the center line. He also admitted that such information was not recorded in his incident report.

Officer Bates also testified that Guthrie was traveling approximately seventeen or eighteen miles per hour in a thirty-five mile per hour speed zone. He decided to pull Guthrie over after witnessing at least one of the vehicle’s driver’s side tires leave the pavement when the driver made a right turn. Officer Bates testified that he turned on his lights after Guthrie made the right-hand turn onto Little Street. Officer Bates stated that he did not know who he was pulling over, but later admitted that once Guthrie got out of his vehicle, he recognized him and knew him to be a convicted felon. Officer Bates testified that Guthrie immediately got out of his vehicle and began acting nervous. Officer Bates called for backup and Officer Joe Savage was dispatched to the scene of the stop.

Officer Bates asked Guthrie if he had any weapons in his vehicle, and Guthrie admitted to having a gun in his truck. While Officer Savage retrieved the gun, Officer Bates placed Guthrie under arrest. Officer Bates then conducted a pat-down search of Guthrie and discovered a black bag containing methamphetamine and empty baggies. Thereafter, Officer Savage, who is a trained canine handler, walked his canine around the exterior of Guthrie’s vehicle. The canine alerted on the outside passenger door. Officer Savage discovered a briefcase in the backseat of the vehicle that contained additional methamphetamine, twenty-one grams of marijuana, drug paraphernalia, and $3,322.52 in cash. The police also discovered an organizer and a spiral notebook containing names with dollar amounts beside them.

Guthrie’s testimony contradicted Officer Bates’s account of the stop and search. Guthrie claimed that the officer did not turn his lights on or approach him until after he had already turned into his driveway, exited his vehicle, and begun to open his gate. Guthrie testified that Officer Bates told him that he had gone left of center and seemed to be driving slow. Guthrie told the officer that he had been driving slow because he thought he had a flat tire. Officer Bates asked Guthrie for his vehicle registration, and Guthrie began to look in the truck for it. According to Guthrie, Officer Bates asked him to get out of the vehicle and then the officer began puffing Guthrie toward his squad car. Guthrie also claimed that the officer began going through his pockets at this time. Guthrie denied ever giving the police permission to retrieve the gun from his vehicle or to search the vehicle

Guthrie’s stepdaughter Miranda McCarver testified that she was watching television when she saw headlights through a window. Believing it to be her stepfather, Miranda stated that she looked out the window and saw Guthrie start to open the gate, at which time a police car pulled up. According to Miranda’s testimony, the police car’s lights were not on when the car first pulled up. Miranda also testified that she saw the officer pull at her stepfather and search his pockets.

Guthrie was charged with two counts of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and felon in possession of a firearm. Guthrie filed a pretrial motion seeking to suppress the contraband seized from his vehicle. After conducting the foregoing suppression hearing, the trial court determined that there were not reasonable grounds to support the stop of Guthrie and thus granted Guthrie’s motion to suppress. Further proceedings in this matter have been stayed, pending the outcome of this appeal.

As an initial issue, this court must determine whether the State has properly brought this interlocutory appeal under Ark. R. App. P. — Crim. 3. See State v. Donahue, 334 Ark. 429, 978 S.W.2d 748 (1998). There is a significant and inherent difference between appeals brought by criminal defendants and those brought on behalf of the State. The former is a matter of right, whereas the latter is not derived from the Constitution, nor is it a matter of right, but is granted pursuant to Rule 3. See Bowden v. State, 326 Ark. 266, 931 S.W.2d 104 (1996).

This court recently outlined the limited instances in which the State may bring such appeals:

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. Stephenson, 330 Ark. 594, 595, 955 S.W.2d 518, 519 (1997). Thus, where the resolution of the issue on appeal turns on the facts unique to that case, it cannot be said that the appeal is one requiring interpretation of our criminal rules with widespread ramifications. See State v. Gray, 330 Ark. 364, 955 S.W.2d 502, supplemental opinion on denial of reh’g, 330 Ark. 368-A, 958 S.W.2d 302 (1997); State v. Harris, 315 Ark. 595, 868 S.W. 2d 488 (1994). An appeal that raises the issue of application, not interpretation, of a statutory provision does not involve the correct and uniform administration of the criminal law. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Furthermore, this court will not accept an appeal by the State where the trial court has acted within its discretion after making an evidentiary decision based on the particular facts of the case or even a mixed question of law and fact. Id.

Here, the State does not assert that the trial court incorrectly interpreted the law or that the outcome of this appeal will set important precedent. In the conclusion of its brief, the State argues that the court’s ruling was clearly erroneous because the court misapplied a rule of criminal procedure and constitutional law. In other words, the State is arguing that based on the facts and circumstances of this case, the trial court did not correctly apply the law. Such an argument is not a basis for an appeal by the State under Rule 3(c).

The dissent suggests that this court should consider the merits of the State’s appeal based solely on the “striking similarities” between the present matter and State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526, supplemental opinion on denial of reh’g, 340 Ark. 318-A (2000). The only similarity between the two cases, however, is the fact that both were interlocutory appeals brought by the State challenging the trial courts’ orders suppressing evidence. The similarities end there. Sullivan involved a review of the trial court’s ruling regarding the legality of both a stop and a search. In deciding to suppress the evidence, the trial court made a specific finding that the stop was valid but that the subsequent arrest and vehicle search were not. Sullivan involved a specific Fourth Amendment issue, namely pretextual arrest, and our review of that case was necessary to ensure the correct and uniform administration of the criminal law. Indeed, the trial court concluded that the officer’s decision to physically arrest Sullivan, rather than issue traffic citations, was based on the officer’s recognition of Sullivan as someone involved in narcotics.

Here, the trial court simply found that there were no reasonable grounds to support the stop of Guthrie. The trial court made absolutely no findings regarding the arrest and search of Guthrie’s vehicle. Nothing in the trial court’s ruling implicated any specific Fourth Amendment issues; rather its ruling amounts to nothing more than a run-of-the-mill probable-cause determination. Resolution of the issue in this appeal does not require our interpretation of the criminal rules. See Gray, 330 Ark. 364, 955 S.W.2d 502. Instead, the State is asking us to assume the role of factfinder and reevaluate the trial court’s decision on an evidentiary matter. This we will not do.

In upholding the trial court’s suppression order in Stephenson, 330 Ark. 594, 955 S.W.2d 518, this court stated that it would not engage in a search for error where any determination it made would not set precedent or serve as a guide in future prosecutions. Likewise, we decline to engage in a search for error in the present case. Ultimately, the trial court based its determination to suppress the evidence on the facts and circumstances surrounding this stop. This was a fact-intensive matter for the court to resolve after receiving the evidence and weighing the credibility of the witnesses. The trial court made no broad ruling that would impact future cases or have widespread ramifications on the law surrounding probable cause to make a vehicle stop. Therefore, our review of the suppression order is not required because the correct and uniform administration of the criminal law is not at issue. Accordingly, the State’s appeal is dismissed.

Glaze, Imber, and Smith, JJ., dissent.

TOM Glaze, Justice,

dissenting. In this appeal, we are called tice, trial court’s granting of a defendant’s motion to suppress seized evidence under Ark. R. App. P. 3(a)(1) and Ark. R. Crim. P. 16.2. This court refuses to do so even though it just made such a review in the strikingly similar case of State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000) (supplemental opinion denying rehearing 340 Ark. 318-A (2000). Like Sullivan, this is the very type of case this court has previously reviewed under Rule 3(a)(1) to insure the correct and uniform administration of the criminal law. This court is wrong in not doing so now. While the majority opinion fails to see the similarities between this appeal and the ones in Sullivan, the reader may make his or her own comparison from the following summary of facts in the two cases:

Sullivan Case

Officer stopped Sullivan after observing his speeding five miles per hour over the speed limit. Officer asked for Sullivan’s vehicle registration and proof of insurance, which he could not produce. The officer discovered Sullivan’s speedometer did not work and his car windows were illegally tinted. The officer became aware of Sullivans identity as someone who was known to the narcotics section after he stopped Sullivan. The officer also saw a hatchet in the car in plain view. The officer searched Sullivan’s car incident to arrest and as an inventory search.

Sullivan moved to suppress, which the trial court granted, riding the officer’s stop was proper, but that the officer unlawfully arrested Sullivan, rather than giving him a citation. The State filed an interlocutory appeal under Ark. R. App. P. — Crim. 3(a)(1), which the attorney general stated required a review of a grant of a motion under Ark. R. Crim. P. 16.2 to suppress seized evidence.

Guthrie Case

Officer believed Guthrie was an impaired driver when he pulled on Highway 62. He observed Guthrie crossing over center line and saw Guthrie driving about eighteen miles per hour in a thirty-five mile per hour zone. Officer stopped Guthrie after seeing his drivers’ side tire go off the pavement. Officer claimed he did not know Guthrie until Guthrie stopped, and the officer knew Guthrie was a convicted felon, who acknowledged he had a gun in his truck. Officer found methamphetamine on Guthrie when he patted him down. Officers subsequently found additional methamphetamine, twenty-one grams of marijuana, drug paraphernalia, and $3,332.52 in cash.

Guthrie moved to suppress, which the trial court granted, ruling there was no reasonable ground for the stop. State filed interlocutory appeal under Ark. R. App. P. — Crim. 3(a)(1), because, like in State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526, the appeal involved the constitutional safeguards applicable to traffic stops and the misinterpretation and misapplication of Ark. R. Crim. P. 16.2, under which the trial court improperly granted Guthrie’s motion to suppress. The attorney general asserted this issue insured the correct and uniform administration of the criminal law in Arkansas.

As is readily seen from the above, the respective trial courts in Sullivan and Guthrie suppressed seized evidence following a traffic stop of the defendants’ vehicles. The one meaningful distinction is that the Sullivan suppression motion was granted upon a “pretextual arrest” ground, and the Guthrie motion was granted based on an unreasonable stop. In both cases, the State contended that the search and seizure of the contraband found in each defendant’s vehicle was proper under Whren v. United States, 517 U.S. 806 (1996). In sum, the State argues that, an officer may validly stop and detain a motorist where the officer has probable cause to believe a traffic violation had occurred. See also Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Thus, the State’s argument goes, if a valid stop and arrest are made for violations of the law in an officer’s presence, an inventory search or search incident to the arrest is valid as well. Id., see also Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997).

This court’s decision denying a rehearing in Sullivan was a divided one, 4-3, and it is not at all clear how that decision will affect a traffic stop, arrest, and search when a trial judge premises his granting of a suppression motion on grounds other than a “pretextual arrest.” This court, as it did in Sullivan, should make it clear how it intends to apply the holdings in Whren, Burris, and Travis to facts that are almost identical to those in Sullivan, but differ in that the suppression motions were granted based on different grounds— “pretextual arrest” in Sullivan, as opposed to an “unlawful stop” in Guthrie.

The present state of the law in these traffic stop-and-arrest situations is confusing, and this court should attempt to make its holdings clearer. In short, our court should decide whether the traffic stop and resulting arrest and search in Guthrie is valid under Whren when no pretextual arrest was involved like the trial court found in Sullivan. There is absolutely no reason not to address the issue and Rule 3(a)(1) is the means by which this court may do so. The development of the law involving Arkansas’s traffic stop and search-and-seizure cases compel our review, and I would grant and decide the merits of the appeal.

IMBER and SMITH, JJ., join this dissent.


author: ANNABELLE Clinton Imber, Justice.

text:
    Elizabeth Diane HAGAR v. STATE of Arkansas
    CR 99-1349
    19 S.W.3d 16
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      Harold S. Erwin, Judge;

      Paul N. Ford, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   ANNABELLE Clinton Imber, Justice.

At issue in this case is stice. lawfully imposed a ten-year prison sentence for the crime of manslaughter. Appellant, Elizabeth Diane Hagar, was charged with first degree murder following the death of her husband, Mark Allen Hagar. Although Mrs. Hagar confessed to shooting her husband two times with a .38 caliber handgun, she claimed that she acted in self-defense after her husband came home in a drunken state and terrorized her with a gun. Following a jury trial, Mrs. Hagar was convicted of manslaughter and sentenced to a term of ten years in the Arkansas Department of Correction and a fine of $5,000. The disputed facts leading up to the shooting are not relevant because this appeal does not involve a challenge to the sufficiency of the evidence. In her only point for reversal, Mrs. Hagar contends that the trial court erred when it imposed a ten-year prison sentence pursuant to Ark. Code Ann. § 16-90-121 (1987). We disagree and affirm the trial court.

At the conclusion of the first stage of a bifurcated trial in this case, the jury found Mrs. Hagar guilty of manslaughter, a Class C felony, and further found that she used a firearm in the commission of the offense. During the sentencing phase of the trial, the jury was given the following standard AMCI 2d 9304 verdict form on which to fix a sentence:

We, the jury, having found Elizabeth Diane .Hagar GUILTY OF MANSLAUGHTER, FIX HIS [sic] SENTENCE AT:
(A) A TERM OF (NOT LESS THAN 3 NOR MORE THAN 10 YEARS) IN THE ARKANSAS DEPARTMENT OF CORRECTION.
(B) A FINE OF (NOT EXCEEDING $10,000) DOLLARS; OR
(C) BOTH A TERM OF (NOT LESS THAN 3 NOR MORE THAN 10 YEARS) IN THE ARKANSAS DEPARTMENT OF CORRECTION AND A FINE OF (NOT EXCEEDING $10,000) DOLLARS.

In closing argument, Mrs. Hagar’s attorney told the jury that they were allowed to consider and recommend to the judge that Mrs. Hagar be placed on probation. The jury deliberated and returned a verdict form to the trial court which left all of the blanks on the form empty, although the handwritten words “5 years probation” and “$5,000 fine” appeared at the bottom of the form below the jury foreman’s signature. The jury was then dismissed without objection, at which point the State advised the trial judge that, notwithstanding the jury’s recommendation of five years’ probation, Ark. Code Ann. § 16-90-121 (1987) mandated the imposition of a ten-year prison sentence. Pursuant to that enhancement statute, any person who is found guilty of a felony involving the use of a “deadly weapon” shall be sentenced to a minimum of ten years in the state prison without parole. The trial court sentenced Mrs. Hagar to ten years in the Arkansas Department of Correction pursuant to section 16-90-121, and to a fine of $5,000 pursuant to the jury’s recommendation. A motion to set aside the verdict and sentence was timely filed by Mrs. Hagar. She argued that the trial court should set aside the ten-year prison sentence and impose “the sentence as recommended by the jury” despite Ark. Code Ann. § 16-90-121, or in the alternative grant a new trial on the charge of manslaughter. The trial court denied the motion to set aside the verdict and sentence. From that decision Mrs. Hagar brings this appeal. This court has jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (6), because the case presents an issue of first impression and statutory interpretation.

For her sole point on appeal, Mrs. Hagar argues that the trial court erred when it sentenced her to ten years in the Arkansas Department of Correction pursuant to Ark. Code Ann. § 16-90-121. In support of this argument, she first asserts that § 16-90-121 is inapplicable because the jury did not find her guilty of a felony involving the use of a “deadly weapon.” According to Mrs. Hagar, the appropriate statute for any enhancement is Ark. Code Ann. § 16-90-120, based upon the jury’s finding that she used a “firearm” in the commission of the offense. We disagree.

Arkansas Code Annotated section 16-90-121 (1987) provides that:

Any person who is found guilty of or pleads guilty to a felony involving the use of a deadly weapon, whether or not an element of the crime, shall be sentenced to serve a minimum of ten (10) years in the state prison without parole but subject to reduction by meritorious good-time credit.

(Emphasis added.) Arkansas Code Annotated section 16-90-120 (1987), on the other hand, provides that:

(a) any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
(b) The period of confinement, if any, imposed pursuant to this section shall be in addition to any fine or penalty provided by law as punishment for the felony itself Any additional prison sentence imposed under the provisions of this section, if any, shall run consecutively and not concurrently with any period of confinement imposed for conviction of the felony itself.

(Emphasis added.) We strictly construe criminal statutes and resolve any doubts in favor of the defendant. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). However, we also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. State v. Havens, 337 Ark. 161, 987 S.W.2d 686 (1999). The first rule of statutory construction is to construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. If the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. Bush v. State, 338 Ark. 772, 2 S.W.3d 761 (1999). Statutes relating to the same subject must be construed together and in harmony, if possible. Id.

Arkansas Code Annotated section 5-1-102(4) (Repl. 1997) defines the term “deadly weapon:”

(4) “Deadly weapon” means:
(A) A firearm or anything manifesdy designed, made, or adapted for the purpose of inflicting death or serious physical injury; or
(B) Anything that in the manner of its use or intended use is capable of causing death or serious physical injury.

(Emphasis added.) When this statute is read in conjunction with sections 16-90-120 and 16-90-121, and the statutes are given their ordinary and usually accepted meaning, there is no ambiguity. If a defendant is found guilty of a felony involving the use of a deadly weapon, including but not limited to a firearm, that defendant must be sentenced to serve a minimum of ten years in the state prison pursuant to section 16-90-121. According to the plain language of that statutory provision, the use of a deadly weapon need not be an element of the crime. If the deadly weapon used by the felon is a firearm, the sentencing court has the discretion pursuant to section 16-90-120 to impose a period of confinement not to exceed fifteen years, which period would be in addition to any fine or penalty authorized as punishment for the felony itself. We have previously held that when two punishment statutes exist, a court is not prevented from using the more stringent provision. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). See also, Jernigan v. State, 38 Ark. App. 102, 828 S.W.2d 864 (1992); Crespo v. State, 30 Ark. App. 12, 780 S.W.2d 592 (1989). Indeed, the trial court was required to use the more stringent provision here. We therefore reject Mrs. Hagar’s argument that the trial court should have sentenced her under Ark. Code Ann. § 16-90-120.

Mrs. Hagar next argues that the trial court erred in failing to sentence her according to the sentencing guidelines promulgated in Ark. Code. Ann. § 16-90-803 (Supp. 1997). Arkansas Code Annotated section 16-90-803 (a)(1) provides that:

When a person charged with a felony enters a plea of guilty or no contest, enters a negotiated plea, or is found guilty in a trial before the judge, or when the trial judge is authorized to fix punishment following an adjudication of guilt by a jury pursuant to § 5-4-103, sentencing shall follow the procedures provided in this chapter.

(Emphasis added.) Arkansas Code Annotated section 5-4-103(b) (Repl. 1997) provides that:

(b) Except as provided by §§ 5-4-601'— 5-4-605, 5-4-607, and 5-4-608, the court shall fix punishment as authorized by this chapter in any case where:
(1) The defendant pleads guilty to an offense; or
(2) The defendant’s guilt is tried by the court; or
(3) The jury fails to agree on punishment; or
(4) The prosecution and the defense agree that the court may fix punishment; or
(5) A jury sentence is found by the trial court or an appellate court to be in excess of the punishment authorized by law.

(Emphasis added.) Mrs. Hagar argues that the sentencing guidelines apply because the jury failed to agree on punishment. We disagree. The jury in this case unanimously recommended a sentence that included five years’ probation and a fine of $5,000. The jury’s recommended sentence fell clearly within the statutory range for a Class C felony, such as manslaughter. Ark. Code Ann. §§ 5-4-401(a)(4) and 5-4-201(a)(2) (Repl. 1997). Furthermore, a defendant convicted of a Class C felony may be sentenced to probation instead of a term of imprisonment. Ark. Code Ann. § 5-4-104(d)(2) (Repl. 1997). Accordingly, we conclude that the trial court did not err when it failed to sentence Mrs. Hagar according to the sentencing guidelines promulgated in Ark. Code Ann. §16-90-803.

Mrs. Hagar also cites the cases of Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (1996), and Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000), for the proposition that the jury “completely failed to render any verdict within compliance with Arkansas law” and “once the trial court dismissed the jury, the trial court had no discretion but to resort to the sentencing guidelines ... [.]” Those cases, however, are inapposite. In Higgins v. State, the jury initially fixed a sentence of zero imprisonment and a zero fine and suggested one year of probation. Higgins v. State, 326 ark. 1030, 936 S.W.2d 740 (1996). The trial court concluded that this was not a legal sentence and sent the jury back to deliberate once more. Id. The jury returned with a sentence of a $3,000 fine and no imprisonment, along with a suggestion of five years’ probation. Id. We held that the trial court did not err in sending the jury back to reconsider the matter because the jury’s first sentence fell outside the statutory range for the crime; that is, “the jury could have given a term of imprisonment or a fine or both, but instead, it seized none of these options.” Higgins v. State, 326 Ark. at 1038, 936 S.W.2d at 744. The jury’s sentence in this case is clearly distinguishable from the jury’s first sentence in Higgins v. State. As previously stated, the sentence recommended by the jury fell within the statutory range for manslaughter. In fact, the jury’s recommendation of a $5,000 fine and five years’ probation is virtually identical to the second jury verdict in Higgins v. State — a $3,000 fine and five years’ probation. In Slaughter v. State, the Arkansas Court of Appeals held that the trial court erred when it took the case from the jury and imposed its own sentence because the sentence imposed.by the jury fell within the statutory range for the crime. Slaughter v. State, 69 Ark. App. 65, 12 S.W.3d 240 (2000). However, in that case there was no mandatory enhancement statute, such as Ark. Code Ann. § 16-90-121, as there was in this case. Moreover, Mrs. Hagar has never contended, either on appeal or before the trial court, that the trial court erroneously took the case away from the jury.

For her final argument, Mrs. Hagar contends that the trial court “failed to correct an illegal sentence when the opportunity was provided to it.” This contention is also without merit for the reasons previously stated in connection with Mrs. Hagar’s penultimate argument.

Affirmed.


author: LAVENSKI R. SMITH, Justice. TOM GLAZE, Justice,

text:
    STATE of Arkansas v. Jerry Dean HOWARD
    CR 99-989
    19 S.W.3d 4
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      Alan David Epley, Judge;

      Stevan E. Vowell, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Ass’t Att’y Gen., for appellee.
   LAVENSKI R. SMITH, Justice.

The State filed this interlocutory appeal ice. Carroll County Circuit Court’s pretrial order suppressing evidence of drug activity seized from Appellee Jerry Dean Howard’s residence and property in rural Carroll County. The trial court found the search warrant invalid due to its inaccurate property description. The State contends the trial court erred as a matter of law due to the rural nature of the property. It contends that naming the owner of rural property is sufficiently particular under Arkansas law. The State appealed this case to the court of appeals, which certified it to this court pursuant to Arkansas Supreme Court Rule l-2(d).

Facts

On the morning of May 31, 1998, Carroll County Sheriff Deputy Greg Lester prepared a search warrant with a supporting affidavit. Lester also signed the affidavit for the search warrant. Deputy Lester then presented them to Municipal Court Judge Kent Coxsey, who signed the search warrant based on the representations made under oath by Lester and in the affidavit. The affidavit and warrant both described the property to be searched as follows:

The residence located at Route #2 on County Road #517, Berryville, AR, a one story, off-white single family dwelling located on the northeast side of County Road #517, outbuildings located on this same property, the pond and surrounding area (suspected to be commonly owned by Jimmy and Jerry Howard), and vehicles located on this same property, currently occupied by Jerry Howard, Venus Howard, Sue Howard, and Cody Howard.

Thereafter, Lester, Officer Marr, and other officers from the Carroll County Sheriff’s Department executed the warrant on Jerry’s residence and property and on his brothers residence and property in Carroll County, with the search turning up evidence of methamphetamine manufacturing and other drug activity. Police arrested and the prosecutor charged Jerry, his brother Jimmy, who also lived in a house on the same county road, Brenda Kay Proctor, Susan Greer Howard, Steve Orion Howard, and Cody Howard with several drug-related crimes in an information filed on July 31, 1998.

Jerry’s attorney filed a motion to suppress the evidence obtained in the search, and the trial court held hearings April 19, 1999, and May 10, 1999. During the hearings, the State presented testimony from Officers Lester and Marr and Judge Coxsey regarding the collection of evidence for and issuance of the affidavit and search warrant. The defense then presented testimony by Jerry and Steve Howard, and presented a videotape depicting the county road and property owned by Jerry.

According to the testimony of Officer Lester, the Carroll County Sheriff’s Department first received a phone call from an informant approximately one year before this search was conducted regarding possible drug activity taking place at Jimmy’s residence. Then, about three weeks before the search of the property, the department began receiving “many” calls, approximately ten to fifteen calls, from informants telling the officers that the Howards, specifically Jimmy Howard, were manufacturing methamphetamine at their houses.

Officer Lester testified that a few days before the search was conducted, he questioned a confidential informant, informant #175, who had just been arrested. The informant indicated that she had just been to Jimmy’s residence and that Jimmy was manufacturing methamphetamine. In order to test the veracity of this informant’s information, Officer Lester questioned the informant about the location and layout of Jimmy’s residence. Officer Lester testified that he had knowledge of the details of this residence because he had served an eviction notice, or notice of detainer, on Jimmy at his residence. Officer Lester testified that the details the informant provided indicated to him that she had, in fact, been at Jimmy’s residence and that she had witnessed illegal activity taking place.

With regard to the warrant for Jerry’s residence, Officer Lester testified that he supported the affidavit for the search warrant by references to the anonymous phone calls to the sheriff’s department and by “inadvertent confidential informants” who had been to the residences. These “inadvertent” informants were people Officer Lester heard speaking on an audio tape regarding another drug suspect, and these informants spoke of the Howard residences “on the mountain.” After an objection by the defense that this information was not in the affidavit for the warrant, Officer Lester then testified that he based the affidavit for the search of Jerry’s residence on the information provide by confidential informant #175.

On cross-examination, Officer Lester indicated that he did not include a house number or residence address on the warrant for the search of Jerry’s house because he did not think that there were any other houses on the county road besides Jerry’s house and Jimmy’s house. He indicated that another house, Sue Howard’s sister’s house, was close to the Howards’ houses but was on a different county road. Officer Lester also indicated that he described Jerry’s house as a one-story, off-white, single-family dwelling located on the northeast side of County Road #517. He also indicated that the pond was described as being part of Jimmy’s property and Jerry’s property, and that a large metal shed was actually across the county road although that was not indicated in the affidavit. Officer Lester indicated that he included all of the outbuildings, in general, in both of the affidavits for warrants, and that the confidential informant who gave him his information did not indicate that there were any drugs or drug activity in the metal shed or building across the county road from the property.

Regarding the residents of the two houses searched, Officer Lester indicated that he knew that Jerry and his wife Susan, and their son Steve lived in Jerry’s house, and that possibly Venus, Jerry’s and Susan’s daughter, did too. Officer Lester also indicated that he knew that Jimmy, Brenda, and Cody Howard lived in Jimmy’s house, despite the fact that the affidavit and warrant indicated that Jerry, Venus, Susan, and Cody Howard lived in Jerry’s house. Officer Lester testified that he did not look at any deeds to determine who actually owned the property, nor was he aware that these tracts of land were part of a subdivision. He indicated that the department believed that both Jimmy and Jerry jointly owned the property, but he also indicated that the wooden shed allegedly containing the methamphetamine lab was on Jimmy’s property. Officer Lester testified that he was part of the team that searched Jimmy’s house, not Jerry’s house.

Judge Coxsey testified that he signed the search warrant based on the fact that he believed that there was probable cause to search the named premises. Officer Marr next testified, and he indicated that he was part of the team that searched Jerry’s house and property. According to Officer Marr, the confidential informant told him and Officer Lester that she had seen the production of methamphetamines in a shed behind Jerry’s house, as well as sales being made at both residences, and paraphernalia at both residences and in some outbuildings on the property approximately one week before she spoke to the officers. Officer Marr also testified concerning the information received from the confidential informant, and he stated that the informant indicated that the Howards were working back and forth between Jimmy’s and Jerry’s houses and property. Officer Marr indicated that the informant told him that a methamphetamine “cook” took place in the shed behind Jerry’s house, and he acknowledged that that would have been a different story than the one the informant told Officer Lester that the “cook” had taken place in the shed behind Jimmy’s house down by the pond. Officer Marr testified that they did not know who owned the shed or pump house by the pond, and that they took no steps to investigate on whose land that building was located. Officer Marr also indicated that he could not provide a reason why Cody Howard was listed as a resident of both Jimmy’s and Jerry’s houses, and he acknowledged that Cody could not be a resident of both despite the fact that he was listed on both affidavits and warrants as such.

The defense presented testimony from Jerry, who noted that he owned both residences at issue in the warrants. He took over the bank loan on Jimmy’s land to avoid foreclosure. Jerry testified about a videotape he made for the hearing which shows the county road from the beginning to his residence. Jerry testified that several houses are located along the road, including his and Jimmy’s, as well as Gail Howard’s house, a house owned by someone named Chris, Brandon Smith’s house, Sam Dada’s house, and James and Kay McNutt’s house. Jerry also testified regarding the location of several outbuildings on his and Jimmy’s property. Finally, Steve Howard testified regarding his presence at the search of Jerry’s house.

After the hearing, the circuit judge issued his four-page decision filed June 21, 1998, finding that the search warrant did not sufficiently describe the property to be searched. As such, the court suppressed the evidence seized in the search of Jerry’s and Jimmy’s property. The State appealed this ruling on June 24, 1999, to the court of appeals, which certified it to this court for review.

Standard of Review

In reviewing a case involving the suppression of evidence, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling is clearly erroneous or against the preponderance of the evidence. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999); Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998). In making this determination, we view the evidence in the light most favorable to the appellee. Fouse, supra; Langford, supra. The State urges this court to use a de novo standard of review, arguing that the trial judge applied the incorrect law when ruling that the search warrant was defective in its description of the property. The State cites State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991), for the proposition that where the matter to be decided is principally one of law, the Court may conduct a de novo review. The State argues that because the court did not find that the defendant’s name alone on the search warrant for a rural piece of property was sufficient to identify the property, the court did not apply the law correctly, and this court must now review the case de novo. We decline the State’s invitation. The Blevins court noted and applied the general standard of review in suppression cases recited above.

The only issue on appeal is whether the warrant sufficiently described the property to be searched. The trial court, in suppressing the search, held that the warrant was defective “for failure to particularly describe the place to be searched and the things to be seized as required by ARCrP 13.2 (b) (iii).” Specifically, the court noted that the deviation by the officers in this case was so great that there was substantial risk of the wrong property being searched. The court also found that the violation was “willful” because the officers could have easily obtained the correct description and location of the property.

In this interlocutory appeal, the State argues that the search warrant in this case was sufficient under constitutional requirements and under the Arkansas Rules of Criminal Procedure. The State contends that merely naming the owner of rural property is sufficiently particular to describe the property to be searched, and any descriptive errors in the warrant do not make the warrant invalid. The State avers that the attack on the warrant by Howard was a technical attack, and that this court disfavors those. Furthermore, the State argues that even if the totality-of-circumstances standard of review was appropriate, suppression was unwarranted. The State notes the police had no doubt about which property was to be searched because two of the officers conducting the search had been to this property previously, these officers had personally met with the drug informant before the warrant was issued, and Howard admitted that the property was his. Overall, the State argues that despite the fact that there were other houses on the same road as Howard’s house and despite the fact that the warrant described Howard’s house color incorrectly, as well as incorrectly described an outbuilding’s location, the warrant was still valid because the possibility of misidentification was small.

Although not addressed by the parties, we are compelled to address the application of Ark. R. App. P. — Crim. 3 to the instant appeal. Under this rule of appellate procedure, when the State files an interlocutory appeal from the trial court’s grant of a defendant’s motion to suppress evidence under Rule 16.2, an initial inquiry of this court must be whether the appeal involves the correct and uniform administration of justice and of the criminal law. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995); State v. Gray, 330 Ark. 364, 955 S.W.2d 502 (1997). Section (a) of the rule outlines the permissive grounds for State interlocutory appeals in criminal cases. We have many time stated that the State’s ability to appeal is not a matter of right but limited to those cases described under Rule 3. Bowden v. State, 326 Ark. 266, 931 S.W.2d 104 (1996); State v. Stephenson, 330 Ark. 594, 955 S.W.2d 518 (1997).

As we stated in Stephenson, supra:

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).

Stephenson, 330 Ark. at 595. Therefore, where the resolution of the State’s attempted appeal turns on the facts of the case and would not require “interpretation of our criminal rules with widespread ramifications,” acceptance of the State’s appeal is not allowed under Rule 3. Gray, 330 Ark. at 368-B (supplemental opinion on denial of rehearing). An appeal that raises the issues of application, not interpretation, of a statutory provision does not involve the “correct and uniform administration” of justice or the criminal law. Jones, supra. The court in State v. Hart, 329 Ark. 582, 952 S.W.2d 138 (1997), explained this by noting that

[w]here the trial court acts within its discretion after making an evidentiary decision based on the facts on hand or even a mixed question of law and fact, this court will not accept an appeal under Ark. R. Crim. P. 36.10 (now Ark. R. App. P. — Crim. 3(c).

Hart, 329 Ark. at 585-586 (citing Harris, 315 Ark. at 597; State v. Mazur, 312 Ark. 121, 123, 847 S.W.2d 715 (1993) (quoting State v. Edwards, 310 Ark. 516, 838 S.W.2d 356 (1992)).

We hold that in the instant case that the State has not demonstrated that the appeal of this matter involves the correct and uniform administration of the law and is, therefore, dismissed.

Dismissed.

Glaze, J., dissents.

TOM GLAZE, Justice,

dissenting. We should review this case tice, App. P. — Crim. 3(a)(1). It is the type of case this court has reviewed in the past. See State v. Tucker, 268 Ark. 427, 597 S.W.2d 584 (1980); State v. Cashion, 260 Ark. 148, 539 S.W.2d 423 (1976). A significant issue in this appeal requires the interpretation of seven circumstances listed in Rule 16.2(e) as applied to rural property made the subject to a search warrant which contains descriptive errors. That rule provides that a motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial. Because this court does not appear to have considered Rule 16(2)(e) in these circumstances involving a search of rural property, I would reach and decide the merits of this case.

       Rule 3(a) states in pertinent part:
      (a) An interlocutory appeal on behalf of the state may be taken only from a pretrial order in a felony prosecution which (1) grants a motion under Ark. R. Crim. P 16.2 to suppress seized evidence, (2) suppresses a defendant’s confession, or (3) grants a motion under Ark. Code Ann. § 16-42-101 (c) to allow evidence of the victim’s prior sexual conduct. The prosecuting attorney shall file, within ten (10) days after the entering of the order, a notice of appeal together with a certificate that the appeal is not taken for the purposes of delay and that the order substantially prejudices the prosecution of the case. Further proceedings in the trial court shall be stayed pending determination of the appeal.
      (c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal. (Emphasis added.


author: PER CURIAM.

text:
    Kim BEAVERS v. STATE of Arkansas
    CR 00-615
    19 S.W.3d 23
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      Clay Law Firm, by; Alvin D. Clay, for appellant.

      No response.
   PER CURIAM.

Appellant Kim Beavers was convicted of aggravated robbery and theft of property, and judgment was entered on February 2, 2000. Appellant’s attorney, Alvin D. Clay, filed a notice of appeal on February 15, 2000. Then, on February 17, the trial court entered an amended order to reflect the correct sentence imposed. Mr. Clay filed a second notice of appeal on March 31, 2000. On that same day, Mr. Clay also filed a motion with the trial court requesting that his client be declared indigent for purposes of pursuing the appeal. The trial court denied this motion on April 3, 2000.

Mr. Clay states that he filed a motion with the trial court on May 15, 2000, the same day that the record was due to this court, seeking an extension of time to file the record due to the financial conditions of his client. According to Mr. Clay, the trial court denied his motion for an extension of time. Thereafter, he attempted to obtain a partial record from the Pulaski County Circuit Clerk’s Office but was unable to do so because the only person who knew where the partial record was located was out of the office. In support of this motion, Mr. Clay has attached the affidavit of Marilyn Dedmon, the appeals transcript clerk for the Pulaski County Circuit Clerk’s office, as an exhibit to Appellant’s motion. In her affidavit, Ms. Dedmon does state that she was out of the office on May 15, and that Mr. Clay did attempt to obtain a partial record in the case on that date. Ms. Dedmon also states, however, that she had attempted to reach Mr. Clay on May 3, 2000, and again on May 9, 2000, to notify him that the appeal transcript was ready to be picked up.

A motion for a rule on the clerk has now been filed on Appellant’s behalf to compel the clerk’s office to accept the record. In the motion, Mr. Clay avers that the inability of the Pulaski County Circuit Clerk’s office to locate the partial record on May 15, 2000, precluded him from filing the appropriate petitions with this court.

This court has long held that we will grant a motion for rule on the clerk when the attorney admits that the record was not timely filed due to an error on his part. See e.g. Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986). Here, Mr. Clay does not admit fault, but instead places blame on the circuit clerk’s office. Such a tactic is unacceptable. We have held that a statement that it was someone else’s fault or no one’s fault will not suffice. Damiels v. State, 338 Ark. 328, 5 S.W.3d 1 (1999). Furthermore, this court has held that the attorney is responsible for filing the record and cannot shift that responsibility to the trial judge, the court reporter, or the clerk of the lower court. Lewis v. State, 295 Ark. 165, 747 S.W.2d 91 (1988). Because, Mr. Clay fails to accept responsibility for not filing the record within the required time, Appellant’s motion must be denied.

Appellant’s attorney shall file within thirty days from the date of this per curiam order a motion and affidavit in this case accepting full responsibility for not timely filing the notice of appeal, and upon filing same, the motion for belated appeal will be granted and a copy of the opinion will be forward to the Committee on Professional Conduct.

Motion denied.


text:
    James C. FUDGE v. STATE of Arkansas
    CR 99-1102
    19 S.W.3d 22
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      Appellant, pro se.
    No response.
   PER CURIAM.

James Charles Fudge was found guilty by a jury M. capital murder and sentenced to death. The judgment is on appeal to this court. Both counsel for appellant Fudge and the appellee have filed briefs, and the matter is ready for submission. Fudge now seeks leave to participate as “co-counsel” on appeal. He has tendered a supplemental brief that he desires to file if the motion is granted.

Appellant Fudge relies on Faretta v. California, 422 U.S. 806 (1975), for the proposition that he is entitled under the Sixth Amendment to the United States Constitution to participate in his representation on appeal. The United States Supreme Court, however, has specifically said that Faretta was confined to the right of the defendant to conduct his own defense at trial and that there is no constitutional right to self-representation on direct appeal. Martinez v. Court of Appeal of California, 120 S.Ct. 684 (2000). The Court in Martinez held that the Sixth Amendment identified the basic rights that the accused shall enjoy, but that those rights are strictly limited to those rights available in preparation for trial and at the trial itself.

While the Court in Martinez left to the State appellate courts the discretion to allow a lay person to proceed pro se on appeal, it also recognized that representation by trained appellate counsel is of distinct benefit to the appellant as well as the court. We conclude that appellant, who is represented by counsel qualified to represent defendants in capital cases, has not demonstrated that there is any good cause to permit him to serve as co-counsel or to file a supplemental pro se brief.

Motion denied.


text:
    Walter URQUHART v. The Honorable Fred DAVIS, Judge
    00-282
    19 S.W.3d 21
    Supreme Court of Arkansas
    Opinion delivered June 15, 2000

      Petitioner, pro se.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   PER CURIAM.

On March 7, 2000, Walter Urquhart filed a petition AM. writ of mandamus in this court contending that the Honorable Fred Davis, Circuit Judge, had failed to act within a reasonable time on a pro se petition for declaratory judgment that was filed in his court on April 2, 1999. On the day the mandamus action was filed here, one of our staff attorneys wrote to Judge Davis to ascertain the status of the petition for declaratory judgment. There was no response to the letter. On March 16, 2000, the Attorney General responded to the mandamus action, urging that the petition be denied because there was no clear showing that the respondent had failed to perform his duty. The compliance reports filed by Judge Davis with the Administrative Office of the Courts for the periods since the petition for declaratory judgment was filed make no mention of the Urquhart petition.

On April 20, 2000, our staff attorney again wrote to Judge Davis inquiring about the status of the petition for declaratory judgment. When there was no response to the letter, the staff attorney again wrote to Judge Davis on May 11, 2000. There was also no response to that letter, and Judge Davis’s office was contacted by telephone on June 1, 2000. Judge Davis’s case coordinator said at that time that a ruling would likely be entered on June 2, 2000, and a copy would be mailed to this court. The order was not received, and on June 7, 2000, our staff attorney left a message with Judge Davis’s office asking that a filemarked copy of the order be faxed here. There has been no response to the message. On June 9, 2000, our staff attorney contacted the circuit clerk who reported that the Urquhart order had still not been entered.

While we have consistently recognized that the independence of the bench in our judicial system requires that the trial judge control his docket and the disposition of matters filed, this is not to say that a matter should be delayed beyond a time reasonably necessary to dispose of it. Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989). The Code of Judicial Conduct, Canon 3(B)(8), requires that a judge dispose of all judicial matters promptly. As Judge Davis has not responded to letters inquiring about the Urquhart petition and has not reported its pending status to the Administrative Office of the Courts and the response filed by the Attorney General does not explain the reason for the delay in acting on the petition, we must conclude that there is no good cause to justify the delay in ruling on the petition for declaratory judgment.

The writ of mandamus is granted. We direct that Judge Davis enter a order on Urquhart’s petition for declaratory judgment within seven days of the date of this decision.

A copy of this opinion will be forwarded to the Arkansas Judicial Disability and Discipline Commission.

Petition granted.