author: Per Curiam.

text:
    Keith WIGGINS v. STATE of Arkansas
    CR 89-76
    771 S.W.2d 759
    Supreme Court of Arkansas
    Opinion delivered June 12, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant Keith O. Wiggins was found guilty by a jury of burglary and attempted theft of property in 1986. He was sentenced to consecutive terms of fifteen and eight years. The Court of Appeals affirmed. Wiggins v. State, CACR 86-240 (June 3, 1987). He next filed in this court a petition to proceed pursuant to Criminal Procedure Rule 37, which was denied. Wiggins v. State, CR 88-67 (July 5, 1988). Appellant then filed the following pleadings in circuit court: (1) a petition to correct and reduce sentence (filed November 2, 1988); (2) a petition for writ of error coram nobis (filed November 2, 1988); (3) a petition for rehearing (filed February 9, 1989); and (4) a petition for writ of mandamus and declaratory judgment (filed March 17, 1989). In each of the petitions filed in circuit court, appellant sought to have his sentences for burglary and attempted theft of property ordered served consecutively to a sentence imposed in another case. All the petitions were denied, and on April 7, 1989, he filed a notice of appeal from the order which denied the petition for writ of mandamus and declaratory judgment.

The record has now been lodged in the appeal of the order denying the petition for writ of mandamus and declaratory judgment, and appellant has filed a motion asking to be provided with a copy of the transcript on file with this court. The motion is denied and the appeal dismissed because it is clear that there is no merit to the appeal.

In the petition the appellant sought to have the Arkansas Department of Correction recalculate his parole eligibility date. Such a petition, which is civil in nature, is properly filed in the county in which the defendant, i.e. the Director or keeper of the records of the Arkansas Department of Correction, is located. Ark. Code Ann. § 16-60-116(a) (1987); See e.g. Blevins v. Norris, 291 Ark. 70, 722 S.W.2d 573 (1987); St. John v. Lockhart, 286 Ark. 234, 691 S.W.2d 148 (1985); Bargo v. Lockhart, 279 Ark. 180, 650 S.W.2d 227 (1983). As neither the Director nor the keeper of the records of the Department of Correction is located in Pulaski County where the plaintiff/ appellant filed his suit, he was not entitled to any relief in that court, therefore, there would be no point in continuing with the appeal. The appeal is dismissed but without prejudice to appellant’s filing his petition in the proper court.

Motion denied and appeal dismissed without prejudice.

       The record also contains a notice of appeal filed February 9,1989, which covers an order rendered November 21, 1988, which denied the petition to correct and reduce sentence and an order entered November 22, 1988, which denied the error coram nobis petition. The notice of appeal was not timely with respect to the order denying the petition to correct and reduce sentence since it was not filed within thirty days of the date the order was entered as required by the rules of appellate procedure. Ark. R. App. P. 4(a). The notice of appeal was not applicable to the order denying the petition for writ of error coram nobis since the remedy when a writ is denied is a petition for writ of certiorari. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984).


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

license: Public Domain

text:
    B.J. CURRIER v. Rod SPENCER
    89-80
    772 S.W.2d 309
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989
    [Rehearing denied July 17, 1989.]

      Brazil, Clawson & Adlong, by: Charles E. Clawson, Jr., for appellant.

      Jim O’Hara, for appellee.

      Newbern, J., not participating.

   Jack Holt, Jr., Chief Justice.

Appellant B.J. Currier placed an ad in 1986 to sell a one owner 1984 Datsun 300ZX for $8,750.00. Appellee Rod Spencer responded to the ad and purchased the car for $5,000.00 cash and paid $3,250.00 by check. Before the check cleared, Spencer experienced problems with the car and discovered that the rear one-third had previously been replaced with that of another vehicle and the entire car had been repainted. Spencer stopped payment on the check and tried to return the car. Currier refused, whereupon Spencer stored the car and sold it for $6,750.00. Currier brought suit to recover the unpaid balance of the purchase price, and Spencer counterclaimed arguing breach of express and implied warranties, misrepresentation, failure to provide an odometer statement, and violation of the Magnuson-Moss Warranty Act by not preparing and displaying a “Buyer’s Guide” on the vehicle.

The proof showed Currier to be a dealer in used vehicles who misrepresented the car as a one owner 1984 Datsun that had been “tapped” in the front when in fact it had been wrecked and consisted of two cars welded together. The court dismissed Currier’s complaint with prejudice and, finding material misrepresentations by him, reduced the sale price to the actual value of the car ($6,750.00). The court next awarded Spencer $1,500.00, the difference between the purchase price of the car, $8,250.00, and its actual value, $6,750.00. The damage award was doubled for failure to provide an odometer statement. Court costs and attorneys fees were awarded for violation of the Magnuson-Moss Warranty Act. We affirm.

On appeal, Currier argues on grounds of hearsay that the court erred in admitting into evidence a letter from the Arkansas Motor Vehicle Commission certifying that B. J. Currier d/b/a Currier Auto Sales had been licensed with the Commission since late 1985. The letter was introduced to refute Currier’s claim that he was not a dealer in used automobiles when he sold the Datsun to Spencer. We need not reach this issue since the only objection below was that the letter did not reflect Currier’s license might have lapsed at some point. Arguments made for the first time on appeal will not be addressed by this court. O’Bryant v. Horn, 297 Ark. 617, 764 S.W.2d 445 (1989).

Currier also argues that the Magnuson-Moss Act either did not apply or he was not given an opportunity to cure his noncompliance with the Act. On this issue, the trial court relied upon 15 U.S.C.A. § 2310(d) and 16 C.F.R. § 455 (1988). The latter defines used car dealers as persons who sell or offer for sale a used vehicle after selling or offering for sale five or more used vehicles in the previous twelve months. The testimony established that Currier was in the business of selling used cars and that he sold between twelve to fifteen used cars in the twelve months preceding sale of the Datsun.

Under 16 C.F.R. § 455.2, before a used car dealer offers a used vehicle for sale to a consumer, he must prepare and display on the car a “Buyers Guide.” This was not done. The MagnusonMoss Warranty Act provides in such cases that costs and expenses, including attorneys fees, may be awarded against the dealer. The argument that Currier was not given an opportunity to cure either his noncompliance with the Act or the problems Spencer was having with the car is unconvincing on its face, and we do not treat it further. See e.g., Gay v. City of Springdale, 298 Ark. 554, 769 S.W.2d 740 (1989).

Currier next contends the trial court erred in awarding damages for failure to provide an odometer statement. We disagree. Ark. Code Ann. § 4-90-206(a) (1987) provides:

No person shall transfer a motor vehicle without disclosing in writing to the transferee the true mileage registered on the odometer reading or that the actual mileage is unknown if the odometer reading is known by the transferor to be different from the true mileage.

The trial court found that Currier had an affirmative duty to inform Spencer that the odometer reading on the Datsun did not reflect the actual mileage on the car since it would only show the mileage for the front two-thirds and not the rear one-third. Disclosure of that fact obviously would have had an effect on Spencer’s decision to purchase the vehicle, or at least the amount he was willing to pay for it.

Ark. Code Ann. § 4-90-203 (1987) provides that upon violation of the odometer provisions, the buyer shall recover his actual damages together with any costs and reasonable attorney’s fees. The court may increase the award of damages to an amount not to exceed three times the actual damages sustained. Here, the court determined Spencer was entitled to actual damages in the amount of $ 1,500.00. The court doubled that amount pursuant to sections 4-90-203 and 4-90-206, which was proper.

Currier further maintains he is entitled to the difference between the amount Spencer paid for the car, $5,000.00, and the actual value of the car as determined by the court, $6,750.00. Having failed to appeal the dismissal of his contract action, Currier waived whatever claims he might have to amounts due him under his contract with Spencer, and we consider only the propriety of the court’s judgment with respect to the buyer’s claims for breach of warranty and misrepresentation.

- The trial court awarded damages of $1,500.00, being “the difference between the purchase price of the automobile ($8,250.00) and the actual value of the automobile ($6,7 50.00).” That award was appropriate. As we stated in Ozark Kenworth, Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984), the standard measure of damages for either breach of warranty or misrepresentation is the difference in value between the product as warranted and its actual value.

Currier takes issue with the court’s determination that he breached certain express and implied warranties and that he was guilty of misrepresentation. The evidence supports both of the trial court’s conclusions. Any affirmation of fact by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty. Ark. Code Ann. § 4-2-313 (1987). Currier warranted the car to be a one owner 1984 Datsun. What Spencer purchased was two-thirds of one car and one-third of another. Currier also maintained at trial that he was selling the car as his own personal vehicle, which would have made him the car’s “second” owner.

As to implied warranties, the court found that the car could not “pass without objection in the trade under the contract description.” According to Spencer, it was also not “fit for the ordinary purposes for which such goods are used.” Ark. Code Ann. § 4-2-314(2)(a) and (c) (1987). We need not set out the elements required to support an action for misrepresentation, see Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), as the evidence unquestionably supports the trial court’s findings on that issue.

As a final point, Currier contends that Spencer’s exercise of ownership over the car following the initial attempt to return it constituted a waiver of the breach of warranty claims. In Kenworth, supra, we stated that the issue would be decided on a case by case basis. Under the circumstances of this case, Currier’s refusal to allow revocation was such that Spencer was entitled to raise his breach of warranty claims.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Something is out of whack when the purchaser of a car pays $5,000 for a vehicle and sells it for $6,750, and then collects another $3,000 from the seller. The purchaser has cleared $4,750 on this transaction. At the very least he should be required to offset the balance of the purchase price, which amounts to $3,250, against the judgment. In my opinion the purchaser (the appellee) still owes the appellant $250, after giving credit to the double damages assessed by the court.


text:
    Rodney O’Harrison LEE v. STATE of Arkansas
    CR 88-189
    772 S.W.2d 324
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989

      Bill E. Ross, for appellant.

      Steve Clark, Att’y Gen., by: J. BrentStandridge, Asst.Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In this appeal appellant Rodney O’Harrison Lee challenges the length of the sentence he received upon the trail court’s revocation of his probation. We find no error and affirm.

On October 14, 1987, Lee pleaded guilty to three charges: burglary, theft of property, and burglary. In his plea statement, he indicated that he understood the punishment provided by law for the three offenses to be as follows: (1) burglary (imprisonment for not less than five nor more than twenty years, or a fine not to exceed $ 15,000.00, or by both imprisonment and a fine); (2) theft of property over $200.00 (imprisonment for not less than three nor more than ten years, or a fine not to exceed $10,000.00 or by both imprisonment and a fine); (3) burglary (for not less than five nor more than twenty years, or by fine not to exceed $15,000.00, or by both imprisonment and a fine). The trial court accepted his plea, adjudicated him guilty, and placed him on probation for a period of five years. As conditions of his probation, he was to lead a law abiding life, not commit any criminal violation, pay restitution of $25.00 per month, pay a probation fee of $ 10.00 per month, and serve a term of ninety days in the county jail, with credit for thirty days. The order of probation further provided that “[violation of any condition may result in your imprisonment for a term of not less than three years nor more than 50 years, and a fine of $25,000.00.”

On March 9, 1988, the prosecuting attorney filed a petition for revocation of probation on the basis that Lee had been charged with aggravated robbery allegedly committed on January 7, 1988. After a hearing on the petition, the trial court found that Lee had violated his probation by committing the robbery, revoked his probation, and sentenced him to forty years imprisonment on the three charges with jail time credit from April 19, 1988. From this order, he appeals.

For reversal, Lee first contends that the trial court erred in sentencing him to forty years imprisonment in that the length of a defendant’s sentence upon revocation of probation is limited to the length of the sentence originally imposed. We disagree inasmuch as the trial court did not originally impose a sentence upon Lee but merely placed him on probation.

If a defendant is found guilty of an offense other than capital murder, treason, a Class Y felony, or murder in the second degree, the court may suspend imposition of sentence, suspend the execution of sentence, place the defendant on probation, sentence him to imprisonment, a fine, or both, or order him to make restitution. Ark. Code Ann. §§ 5-4-104 (Supp. 1987), 5-4-301 (1987), and 60-90-115 (1987). “Probation” is a procedure whereby a defendant who pleads or is found guilty of an offense is released without pronouncement of sentence subject to the supervision of a probation officer. Ark. Code Ann. § 5-4-101(2) (1987).

If a court suspends the imposition of sentence on a defendant or places him on probation, it may require, as an additional condition of its order, that the defendant serve a period of confinement, not to exceed ninety days in the case of a felony, in the county jail, city jail, or other authorized detentional, correctional, or rehabilitative facility. Ark. Code Ann. § 5-4-304 (1987). An order that the defendant serve a period of confinement as a condition of suspension or probation shall not be deemed a sentence to a term of imprisonment, and the court need not enter a judgment of conviction before imposing such a condition. Id. If the suspension or probation is subsequently revoked and the defendant is sentenced to a term of imprisonment, the period actually spent in confinement shall be credited against the subsequent sentence. Id.

If the trial court revokes a probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty. Ark. Code. Ann. § 5-4-309(f) (1987). If a sentence was imposed originally, the court may not impose a greater sentence than that imposed. Ark. Code Ann. § 16-93-402(e)(5) (1987).

In several of our cases, we have made a distinction between being sentenced and being placed on probation. In McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980), the appellant entered a plea of nolo contendere to theft of property. The court postponed the pronouncement of sentence, refused to accept the plea, and placed appellant on probation for four years. Subsequently, the court revoked his probation and sentenced him to five years imprisonment. On appeal he argued that the four-year term of probation constituted a sentence imposed and that under the 1979 amendment to § 43-2332 [currently Ark. Code Ann. § 16-93-402(e)(5) (1987)], the subsequent sentence should not have exceeded four years. Citing Jefferson v. State, 270 Ark. 909, 606 S.W.2d 592 (1980), this court stated that “we recently recognized that specifying a period of probation in no way limited a trial court on revocation when no sentence had been imposed or pronounced” and that “ [n]othing in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), was meant to suggest otherwise.” Accordingly, we denied the appellant relief on the ground that no sentence was imposed at the time he was placed on probation.

In Williams v. State, 280 Ark. 543, 659 S.W.2d 948 (1983), the appellant entered a plea of guilty, the plea was accepted, he was placed on probation for three years, and judgment was entered to that effect. Later appellant’s probation was revoked, and he was sentenced to ten years imprisonment. On appeal he contended that the subsequent sentence should not have exceeded the term of probation. This court disagreed. We first noted that Ark. Stat. Ann. § 43-2332 (Supp. 1983) provided that the sentence imposed upon revocation of probation is limited to the sentence imposed or any lesser sentence which might have originally been imposed. Next, we stated that in appellant’s case, no sentence was imposed; he was simply placed on probation. Since a ten-year sentence could have been imposed originally, we held that the ten-year sentence imposed upon revocation was proper.

In Diffee v. State, 290 Ark. 194, 718 S.W.2d 94 (1986), the appellant pleaded guilty to obtaining drugs by fraud, and the court entered an order taking the plea under advisement, fining the defendant $500.00 and costs of $75.00, and placing her on probation for three years, on specified conditions. As a matter of law, the court accepted the plea by taking it under advisement. See Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). Thereafter, the court revoked her probation and sentenced her to five years imprisonment. On appeal she contended that the $500.00 fine levied was the sentence imposed, and since the fine had already been paid, the court was precluded from sentencing her to prison upon revocation. Citing McGee, supra, we stated that “[w]e do not regard the $500 fine as a ‘sentence imposed,’ because the statute is directed to a revocation of probation and thus is referring to the possible sentence to imprisonment that gave rise to the probation.” Accordingly, we held that Ark. Stat. Ann. § 43-2332 (Supp. 1985) provided her no relief.

In the case at bar, it is clear that the trial court did not impose a sentence by accepting Lee’s guilty .plea, adjudicating him guilty, and placing him on probation for five years. See Williams, supra. See also Diffee, supra. In addition, no sentence was imposed when the court ordered him to serve ninety days in the county jail, Ark. Code Ann. § 5-4-304 (1987), pay restitution of $25.00 per month, or pay a probation fee of $10.00 per month as conditions of his probation. Therefore, the trial court, in sentencing Lee upon revocation of his probation, was not limited by Ark. Code Ann. § 16-93-402(e)(5) to the length of the sentence originally imposed, but instead was free to impose any sentence that it might have imposed originally for the three charges to which Lee pleaded guilty (burglary, theft of property, and burglary). See Ark. Code Ann. § 5-4-309(f) (1987). In sum, the court properly sentenced Lee to forty years imprisonment. See Ark. Code Ann. § 5-4-401 (1987).

In so holding, we note that the sentence imposed for the three charges was aggregate. Ark. Code Ann. § 5-4-403(a) (1987) provides that when multiple sentences of imprisonment are imposed on a defendant convicted of more than one offense, the sentences shall run concurrently unless the trial court orders the sentences to run consecutively.

Undoubtedly, it would have been better practice for the trial court to have sentenced Lee separately on each of the charges and specifically indicated whether the sentences were to run consecutively or concurrently. However, it is obvious that the court ran at least two of the sentences consecutively by sentencing Lee to forty years imprisonment. In addition, Lee made no objection at trial and makes no argument on appeal concerning the trial court’s failure to do so. Thus, we do not consider whether the trial court erred in this regard.

Lee also contends that the trial court erred in sentencing him to a greater number of years than originally authorized in that only one five-year probationary period was given on all charges. In support of this contention, he states as follows:

And once appellant was sentenced to the one five year probation [on all charges], then he could not be legally sentenced in excess of the longest term under the three charges which would have been burglary under Count II or III for a total maximum of 20 years.

Since Lee neither cites authority nor makes convincing argument in support of this point, we do not consider it. It is well established that we do not consider arguments on appeal that are unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken. See Garza v. State, 293 Ark. 175, 735 S.W.2d 702 (1987).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This is the first time in our history that an accused has been sentenced to a term of forty years without having a trial. Apparently the theory is that if a defendant has had one trial, even if it was for another crime, he may be found guilty on future charges simply by filing a petition for revocation of probation. In 1987, the appellant pleaded guilty to burglary and theft of property and received a sentence of five years probation. The usual restrictions against violations of law were included in the terms of the probation. He was also assessed costs, and probation fees, and given a ninety day jail sentence.

The petitioner allegedly participated in an aggravated robbery on January 7, 1988. The prosecuting attorney filed a petition for revocation of probation on March 9, 1988. At the conclusion of the hearing on revocation, the court stated that it was “convinced that you were involved in the robbery and that you did exert physical force by throwing a substance upon the victim and nearly blinding him. . . . [T]his court hereby sentences you to a term of forty years in the Arkansas Department of Correction.” I do not believe our society has reached a point where it is willing to require a person to serve forty years in prison without being adjudged guilty of the crime for which he is actually sentenced by a jury of his peers.

There is no dispute concerning what occurred in 1987. The appellant entered a guilty plea, was given a probationary sentence of five years, and was required to execute a written contract regarding the conditions of his probation. He also served ninety days in the Mississippi County jail. Furthermore, he was required to pay restitution and court costs. A document, which was entitled “Judgment, Commitment, Order of Probation, or Suspending Imposition of Sentence,” was entered after the guilty plea in 1987. Although the maximum term to which the appellant could have been sentenced at the time for a Class B felony was twenty years, the trial court nevertheless stated that a violation of the terms of probation would result in a possible sentence of fifty years.

It is generally understood that penal statutes are strictly construed in favor of an accused and will not be imposed in the absence of the clearly expressed will by the lawmakers. State v. Bocksnick, 268 Ark. 74, 593 S.W.2d 176 (1980). As we stated in Weber v. State, 250 Ark. 566, 466 S.W.2d 257 (1971): “[Cjriminal statutes are strictly construed, and nothing can be added or taken away from the precise or express language of the Act.”

It appears that we have returned to the problem that faced us in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). Every time the legislature enacts a law and it starts functioning well, some complaining judge, prosecutor, or citizen pressures the General Assembly to change it. The impression is created, through an orchestrated campaign of fear, that unless the law is changed, the criminals will take over the country. By the time the revision reaches the bench and bar, someone else has persuaded the legislature to change it again. Sometimes this court contributes to the confusion by changing our rules too frequently. We need some stability in the law and the sentencing procedure as well as consistency in judicial rules and opinions.

At the time of the petitioner’s sentencing in 1987, he could have been sentenced to imprisonment as authorized by Ark. Code Ann. §§ 5-4-401 — 5-4-404; or probation as authorized by §§ 5-4-301 — 5-4-311; or the payment of a fine as authorized by §§ 5-4-201 — 5-4-204; or imprisonment and the payment of a fine as provided in § 5-4-104(d) (1987). The court could have, in addition or alternatively suspended the execution of the sentence or suspended imposition of the sentence.

It is clear from the record that the court sentenced the appellant pursuant to Ark. Code Ann. § 16-90-115(a)(2) (1987) in the 1987 matter. That section authorizes release after sentencing and in part states:

Suspension of execution of sentence means the procedure whereby a defendant who pleads guilty to, or is found guilty of, a criminal offense is released by the court after pronouncement of sentence.

The appellant was released on probation. At any time during the probation period the probationer may be arrested for violation of probation occurring during the probation period. If a probationer is arrested he shall be taken as “speedily as possible” before the court having jurisdiction over him. “Thereupon, the court may revoke the probation and require him to serve the sentence imposed or any lesser sentence which might have been originally imposed.” Ark. Code Ann. § 16-93-402 (1987). When the imposition of a sentence has been suspended, upon breach of the terms of probation, the trial court has the right to impose the original sentence as announced. Rutledge v. State, 263 Ark. 300, 564 S. W.2d 511 (1978). It does not matter that several years may have passed when a revocation occurs. Any sentence which could have been imposed originally may be imposed if the sentence was not pronounced at the beginning. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).

A sentence is controlled by the statute in effect at the date of the commission of the crime. Ark. Const., art. 2, § 17. The courts have the authority to suspend imposition of sentence and place the defendant on probation. The court cannot, however, sentence the accused at a revocation hearing to a second sentence for the commission of a separate crime. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981).Thatis exactly whathas happened in the case before us. In Easley we quoted from Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981), where we noted that we held in both Maddox v. State, 247 Ark. 553, 446 S.W.2d 210 (1969), and Cantrell v. State, 258 Ark. 833, 529 S.W.2d 136 (1975), that “where the plea of guilty was accepted a later revocation could not exceed the probation period. Here, the plea was accepted and the term of probation was five years. Consequently, a later suspended sentence for ten years was improper.” (Emphasis in original.) Sentencing procedures are controlled by statute. Culpepper v. State, supra.

There is a vast distinction between “suspension of imposition” of a sentence and “suspension of execution” of a sentence. The sentence imposed upon the appellant was for a period of ninety days in jail with the balance of the five years on probation. He was also required to pay a fine and probation costs. Although the court may have intended either to suspend “execution” of the sentence, or suspend “imposition” of the sentence, it did not do so. The sentence was executed at the time appellant served his jail sentence and paid a fine or costs. After a sentence has been placed in execution, the court cannot impose a greater sentence than was originally imposed. See Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), where we stated: “Once a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it.” See also, Culpepper, McGee, and Rutledge, supra.

The court could have properly revoked the five year probationary sentence and required appellant to serve the balance of the sentence. It could not, however, legally sentence the appellant for aggravated robbery without benefit of a trial by jury.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    Louise MORRIS v. SOUTHWESTERN BELL TELEPHONE COMPANY, Welton Davis, Jr., and Ulysses Davis
    88-302
    771 S.W.2d 761
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989
    [Rehearing denied July 17, 1989.]

      Schieffler Law Firm, for appellant.

      Donald D. Young, Robert E. McCallum, Garry S. Warn, and Martha M. Adcock, for appellee.

      Purtle and Glaze, JJ., would grant rehearing. Newbern, J., not participating.

   Jack Holt, Jr., Chief Justice.

Appellant Louise Morris contends that the trial court erred in directing verdicts in favor of the appellees, Welton and Ulysses Davis, and in denying her motion for new trial as to all parties. We find no error and affirm.

In 1981 Southwestern Bell Telephone Company (Bell) entered a “Unit Cost Contract of a Continuing Nature” with Welton Davis, Jr., and Lawrence Davis d/b/a Luco Construction Company (Luco), whereby Luco was to do excavation and backfilling of telephone line trenches for Bell. During the summer of 1983, Ulysses Davis, an employee of Luco acting pursuant to the contract, dug trenches, placed telephone cable, and backfilled trenches in the Caney Creek Subdivision in Helena, Arkansas. Neither Welton nor Lawrence Davis personally worked on this project. Ulysses Davis completed the job on or about August 13, 1983. Around September 13, 1983, James Herrick, a Bell supervisor responsible for overseeing the project, inspected the work, accepted it, and paid Luco.

On the evening of January 12, 1984, appellant Louise Morris, a resident of the subdivision, stepped into a sunken trench in her front yard, causing her personal injuries. Thereafter, she filed suit against Bell, Welton Davis, Jr., and Ulysses Davis alleging that her injuries were proximately caused by the negligence of the Davises and employees of Bell. Specifically, she alleged that the defendants were negligent in failing to properly dig, backfill, and cover holes and trenches in her yard, in failing to warn her of said hazards, in failing to make reasonable inspection of the work after completion, and in failing to notify her that they were working in her yard. Bell filed a cross-claim against the Davises asking to have judgment against them in the event it suffered an adverse judgment on Morris’ complaint.

At the conclusion of trial, both Welton and Ulysses Davis moved for a directed verdict. The trial court granted Welton Davis’ motion, finding that there was not a basis, factual or otherwise, for keeping him in the suit. The court granted Ulysses Davis’ motion on the grounds that (1) once Bell accepted the contract work it became the responsible party for maintaining the trenches, thereby relieving Ulysses Davis of liability, see Devazier v. Whit Davis Lumber Company, 257 Ark. 371, 516 S.W.2d 610 (1974); Southwestern Bell Tel. Co. v. Travelers Indemnity, 252 Ark. 400, 479 S.W.2d 232 (1972), Chesser v. King, 244 Ark. 1211, 428 S.W.2d 633 (1968), and that (2) there was no evidence of negligence on his part.

Using standard comparative fault interrogatories, the jury found that Bell was 20 % at fault for the accident and that Morris was 80 % at fault. The jury also determined by interrogatory that Ulysses Davis did not breach the contract with Bell. Accordingly, judgment was entered in favor of defendant-appellees. Morris appealed after the trial court denied her motion for new trial.

For reversal, Morris contends that the trial court erred in not granting her a new trial and in granting appellee Ulysses Davis’ motion for directed verdict in that his defective work was concealed when Bell accepted his work; that the “acceptance doctrine” has no application under the circumstances; and that in any event, this doctrine should be rejected. In addition, Morris claims that the trial court erred in directing a verdict in favor of Welton Davis inasmuch as he was contractually responsible for the job.

We do not reach the issue as to whether or not the court committed error in directing verdicts in the Davises’ favor or in denying Morris’ motion for new trial since any error under the circumstances was harmless. Likewise, it is not necessary that we address Morris’ arguments concerning concealment or the “acceptance doctrine” inasmuch as examination of the jury’s answers to interrogatories provides us with a sufficient basis to exempt both Welton and Ulysses Davis from any liability to Morris.

This court has indicated that examination of jury interrogatories is an appropriate way to determine exactly what the jury believed. Argo v. Blackshear, 242 Ark. 817, 416 S.W.2d 314 (1967). In addition, we have held that a jury verdict may demonstrate that an alleged error by a trial court was harmless. See Billings v. Gipson, 297 Ark. 510, 763 S.W.2d 85 (1989); Ray v. Murphy, 284 Ark. 512, 683 S.W.2d 916 (1985).

As previously mentioned, the jury determined by interro-' gatory that Ulysses Davis did not breach the contract with Bell. The contract between Bell and the Davises provided in pertinent part as follows:

14. Defects in Work: The Contractor shall correct at his expense all defects and deficiencies in the work which result from material furnished by the Contractor, workmanship or failure to follow the plans, drawings, Bell systems practices, or other specifications made a part of this contract, which are discovered within one year from the date the work is accepted.
22. Duty of Safe Performance: The Contractor shall take every measure to protect all persons and property, including property of the Telephone Company, from injury arising out of the performance of the work.
23. Condition of Job Site: The Contractor shall take all necessary and customary precautions to prevent injury to persons or property .... The Contractor shall continue to maintain such precautionary measures as long as the condition created exists, whether or not the work has been accepted by the Telephone Company for payment purposes.

In finding by interrogatory that Ulysses Davis did not breach the contract, it logically follows the jury concluded that he properly corrected all defects or deficiencies discovered within one year from the date of acceptance (paragraph 14), took every measure to protect all persons and property from injury arising out of the performance of the work (paragraph 22), and took and maintained all precautions to prevent injury to persons or property (paragraph 23). Essentially this is a finding that Ulysses Davis was not negligent. A finding that Ulysses Davis was not negligent compels a finding that Welton Davis, who did not work on the Caney Creek project, was also not negligent.

The jury’s finding conclusively removes both Welton and Ulysses Davis from liability to Morris.

Affirmed.

Purtle and Glaze, JJ., dissent.

Tom Glaze, Justice,

dissenting. My major disagreement with the majority opinion is that it concludes that the jury’s finding, upon special interrogatories, that Ulysses Davis did not breach the provisions of the excavation contract entered into between Southwestern Bell Telephone Company (Bell) and the Davises, means both Ulysses and Welton Davis committed no negligence in connection with the excavation work. Such a conclusion seems so fundamentally wrong that I need not elaborate. Ms. Morris brought the action in tort, alleging the requisite elements of negligence against Bell and the Davises, and her action was submitted to the jury on the theory that the appellees were negligent. Perhaps, she should not prevail on her complaint, but this court should not dispose of her action based on the finding that the Davises did not breach their contract with Bell.

Purtle, J., joins this dissent.


text:
    Rickey C. REYNOLDS v. Cathy L. REYNOLDS
    89-19
    771 S.W.2d 764
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989

      Callis Childs, for appellant.

      Kenneth G. Fuchs, for appellee.
   Jack Holt, Jr., Chief Justice.

In this appeal, appellant Rickey C. Reynolds contends that the chancellor erred in increasing his child support obligation without proof of a change in circumstances subsequent to the entry of the original order of support. We find no error and affirm.

Rickey Reynolds and appellee Cathy L. Reynolds were divorced on December 2, 1986. The parties entered into a property settlement agreement whereby appellee would be awarded custody of the one minor female child and appellant would pay child support of $38.00 per week and have visitation rights. The agreement was incorporated in the divorce decree.

On October 22,1987, appellee filed a petition for an increase in child support based on increased cost of living. After a hearing, the chancellor, utilizing the 1987 family support chart published by the Family Law Section of the Arkansas Bar Association, ordered an increase in appellant’s payments for child support from $38.00 to $58.00 per week. From this order, appellant appeals.

The law concerning modification of child support is well settled. A change in circumstances must be shown before a court can modify an order for child support. Riegler v. Riegler, 246 Ark. 434, 438 S.W.2d 468 (1969); Watson v. Watson, 271 Ark. 294, 608 S.W.2d 44 (Ark. App. 1980). The assumption is that the chancellor correctly fixed the proper amount in the original divorce decree. Collie v. Collie, 242 Ark. 297, 413 S.W.2d 42 (1967); McFadden v. Bramlett, 270 Ark. 850, 606 S.W.2d 375 (Ark. App. 1980). One seeking modification has the burden of showing a change in circumstances. Riegler, supra; Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978).

In determining whether there has been a change in circumstances warranting adjustment in support, the court should consider remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child support chart. Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987). However, there is no hard and fast rule concerning the specific nature of the changed circumstances. Eubanks v. Eubanks, 5 Ark. App. 50, 632 S.W.2d 242 (1982).

For example, in Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981), we affirmed the trial court’s modification of child support from $37.50 to $50.00 per week where the husband was earning take-home pay of $250.00 per week at the time of trial, his wife, the custodial parent, had given him substantial sums of money and an entirety interest in a home and apartment building during the marriage, and the wife had become a college student subsequent to the time the original divorce decree was entered.

In Watson, supra, the court of appeals affirmed the chancellor’s decision to increase child support payments from $40.00 to $60.00 per week based upon the fact the custodial parent was about to move from a mobile home and would need additional funds for dwelling space.

The case at bar is somewhat analogous to Watson in that it involves a custodial parent’s need for additional funds for dwelling space. At the time the original decree was entered, appellee and the child were living with her parents. Since then, appellee has bought a house. The payments are $247.00 a month. She has also purchased a new car, thereby incurring monthly payments of $150.00. In addition, she has utility bills of $80.00 a month and baby-sitter bills of $50.00 a week, both of which she did not have at the time the original decree was entered.

Appellee earns sixty-one cents more an hour than she did at the time of divorce. She takes home about $200.00 a week. Appellant makes about $1.50 an hour more than he did at the time of the divorce. He takes home approximately $280.00 a week.

In increasing the amount of support payments from $38.00 to $58.00 a week, the chancellor did not make a specific finding of a change in circumstances. Notwithstanding, because we review chancery cases de novo, McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988), we are empowered to make such a finding on our own accord. Under the facts of record, we find a change in circumstances sufficient to support an increase in appellant’s child support obligation as ordered by the chancellor.

As an aside, appellant argues that the trial court erred in relying on the 1987 family support chart in making its decision and that Ark. Code Ann. § 9-12-312 (1987) is unconstitutional on its face in that the language in the provision that “the court shall refer to the most recent revision of the family support chart found in the Domestic Relations Handbook published by the Arkansas Bar Association . . . .” is an unconstitutional delegation of legislative authority to the Arkansas Bar Association. Since he did not make these contentions below, we do not consider them. Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988).

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. In spite of the fact that the trial court did not find a change in circumstances, this court “on de novo review” finds such a change in order to affirm the chancellor. I have no disagreement with the amount of support ordered, but in my opinion the only change of conditions here is that this young divorcee moved out of her parent’s home and purchased a house and a new car. Will conditions change if she buys a bigger house and a more expensive car?

We have again evaded the question which the bench and bar have wanted answered: May the chancellor establish child support payments based solely on the child support chart published by the Family Law Section of the Arkansas Bar Association? I would make it clear that the support chart is only a guide and that it is not mandatory to set the amount of the award from the chart.


author: Darrell Hickman, Justice.

text:
    Garland F. MORRIS, Jr. v. Sophia Rose CULLIPHER, Individually as Trustee of Garland F. Morris, Jr. Trust, and Executrix of the Estate of Garland R. Morris, Sr., Deceased
    89-24
    772 S.W.2d 313
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989

      Young, Patton & Folson, by: David Folson; and David J. Potter, for appellant.

      Hubbard, Patton, Peek, Haltom & Roberts, by: George L. McWilliams and Randall D. Goodwin', and Smilie Watkins, for appellee.
   Darrell Hickman, Justice.

The issue in this case is whether Garland Morris, Sr., and his wife, Sophia, made an agreement that their reciprocal wills could not be revoked. The chancellor held there was no agreement and we affirm the decree.

Garland Morris, Sr., and Sophia Cullipher were married in 1966. Mrs. Cullipher had no children, and Morris had one adult child, Garland Morris, Jr., the appellant, who is called Gene. When they married they each had separate real estate holdings. Sophia had about 350 acres of land in Miller County; Mr. Morris had 120 acres in Miller County. He had a one-half interest in 500 acres in Morris County, Texas, another 37 acre tract in Morris County and a lot in Longview, Texas. During their marriage they acquired 633 acres of land, which they held jointly, located in Miller County. When Garland Morris, Sr., died in January, 1985, there was $278,000 in certificates of deposit, which were held jointly.

Morris’ 1969 will generally provided that one-half of his estate went to his wife. (His estate did not include the certificates of deposit, land held jointly, or Sophia’s separate property.) The other half went to a trust with Sophia as trustee for the benefit of Morris’ son, Gene. The will provided that if Sophia predeceased Morris, the entire estate would go to Gene.

Sophia executed a will in 1969 at the same time Morris did at the law office of Reagan McLemore in Longview, Texas. Her will provided that all her property would go to Mr. Morris; but, if he predeceased her, her property would go to Gene.

Sophia testified that this will was destroyed several days after its execution by Mr. Morris when they had an argument over her will. She executed a second will three months later, leaving nothing to Gene. It was stipulated that her third will, which was executed after Mr. Morris’ death, made no provision for Gene.

Gene filed suit claiming that his father and Sophia had a contract not to revoke their 1969 wills. A contract not to revoke a will must be proved by clear, cogent and convincing evidence. Barksdale v. Carr, 235 Ark. 578, 361 S.W.2d 550 (1962). In this case, the chancellor found that burden had not been met. We will not reverse a chancellor’s fact finding unless it is clearly erroneous, ARCP Rule 52(a), and on appeal, we review the evidence in the light most favorable to the appellee. Constant v. Hodges, 292 Ark. 439, 730 S.W.2d 892 (1987).

It is clear in this case that the wills contained no express reference to a contract not to revoke. Even so, such a contract may arise by implication from the circumstances of the case. Janes v. Rogers, 224 Ark. 116, 271 S.W.2d 930 (1954).

The chancellor made the following findings of fact which pertain to the existence of a contract not to revoke:

1. The wills are not identical. Garland’s will leaves half his property to Sophia. Sophia’s will leaves all her property to Garland.
2. At the time Sophia executed her will, she did not know the contents of Garland’s will.
3. At Sophia’s direction, Garland destroyed her will shortly after its execution.
4. Garland made a slight change in his will, which gave Gene access to the corpus of the trust at age 45 rather than age 35, without Sophia’s consent.
5. There was no agreement between Garland and Sophia that Gene would be the beneficiary of Sophia’s estate.

All these findings are supported by Sophia’s testimony, if her testimony is believed. She testified that she was unhappy with her first will because she did not want to leave her property to Gene. She and Garland got into an argument shortly after the wills were executed and, at her direction, Garland tore up her will and threw it in the trash. Three months later she drafted a new will, which did not leave her property to Gene.

She testified there was no agreement between her and Garland that she could not change her will. In fact, she did not know the full content of Garland’s will until after he died. Her second will was kept in a safe deposit box or a safe at home to which both she and Garland had access. She also testified that Gene and his father did not get along well at times.

The appellant produced other witnesses. Rachel Williams was a secretary to the lawyer who drafted the will. She testified that Sophia looked at her will before entering the lawyer’s office and exhibited no displeasure. Ms. Williams said she did not know of the reasoning behind the drafting of the wills and did not know if Garland and Sophia read each other’s wills.

Two family friends testified that Sophia had said Gene would get her property if he “treated her right” or if he “kept being good.” Garland’s brother, Travis Morris, said Garland told him they had gotten the wills straightened out and that Sophia had left everything to Gene.

Gene testified that he never discussed the wills with Garland or Sophia. He said his father once told him that if he played his cards right, Sophia might leave her property to him. He said he and his father had a good relationship.

This testimony presented a credibility question, and it is the duty of the chancellor to weigh the credibility of the witnesses. Blevins v. Wagnon, 281 Ark. 272, 664 S.W.2d 198 (1984).

The appellant points to the fact that the wills were executed at the same time and each made its ultimate bequest to the appellant. There was testimony from friends of the family that Sophia had said Gene would get all her property if he “treated her right” or “kept being good.” A relative, Travis Morris, said that Garland told him they’d gotten their wills “straightened out” and Sophia had left everything to Gene.

The case law supports the chancellor’s decision. In Barksdale v. Carr, supra, the husband and wife executed identical wills giving each a life estate in the other’s property with the remainder divided equally among the children. No language in the will referred to a contract not to revoke. The evidence presented consisted of statements made by the couple that all the children would be treated equally and that they had everything fixed like they wanted it so that one of the heirs would not get more than another. The chancellor held the evidence was sufficient to establish a contract. We reversed, saying the burden of proof had not been met.

The case of Janes v. Rogers, supra, must be distinguished. The wills did not refer to a contract not to revoke. But there was testimony by the couple’s attorney that there was an understanding or agreement between the couple as to the disposition of their property. We made the following statement:

The general rule is that a contract for reciprocal wills need not be expressed, but may arise by implication from circumstances which make it clear that the parties had such wills in mind, that they intended to carry out their plans for testamentary disposition thereby, and that each acquiesced in the understanding of the other.

We agree with the chancellor that there is no clear and convincing evidence in this case that Garland and Sophia “acquiesced in the understanding” that the wills were to be reciprocal and irrevocable. The fact that the wills did not provide for equal disposition of one’s property to the other, the subsequent destruction of Sophia’s will with both parties’ knowledge, Sophia’s lack of awareness about the contents of Garland’s will, Sophia’s testimony that no agreement not to revoke existed, and the fact that the appellant’s evidence could only lead one to speculate whether such a contract was intended, support the chancellor’s finding. Therefore, the chancellor’s findings are affirmed.

The other issue raised is one of discovery. Shortly before the trial, the appellant asked that the appellee produce her third will. The appellee did not want to because it might cause embarrassment to some of the legatees, but she agreed to stipulate that the will did not make a provision for the appellant. The trial judge refused to order the document produced. We cannot say the trial judge abused his discretion in this case. The appellant makes no argument of what would have been the benefit to his case if the will had been discovered. Since the appellant can show no prejudice from the chancellor’s ruling, the ruling will be affirmed. Marrow v. State Farm Ins. Co., 264 Ark. 227, 570 S.W.2d 607 (1978).

Affirmed.

       For wills executed after June 17, 1981, a contract not to revoke may not be established by implication from the circumstances of a case. See Ark. Code Ann. § 28-24-101(b)(1) (1987).


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Alvin L. HALL v. STATE of Arkansas
    CR 89-31
    772 S.W.2d 317
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989

      William R. Simpson, Jr., Public Defender, Didi Harrison, Deputy Public Defender, by: Thomas B. Devine III, Deputy Public Defender,- for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of first degree murder, theft by receiving, and fleeing. The theft by receiving conviction was merged into the murder conviction, and therefore, appellant was sentenced only for first degree murder and fleeing. The appellant’s primary point on appeal is that the only crime he can be convicted of is second degree murder. We affirm the judgments of conviction as set out by the trial court. Since the sufficiency of the evidence is questioned, we set out the evidence in detail.

Charles Thomas’ car was stolen on March 16, 1988. On March 21,1988, policeman Stan Harmon was driving his marked patrol car when he spotted Thomas’ car being driven on 13th Street at the intersection of Woodrow in Little Rock. The officer knew that the car had been seen at the scene of several crimes in the past few days. He started to trail the stolen car. The stolen car turned south onto Johnson Street, started accelerating, turned west onto 14th Street, turned north on Brown, turned west on 12th Street, and by this time was going at a fast rate of speed. The policeman was in close pursuit using his flashing lights and siren. The stolen car continued west on 12th Street at a high rate of speed. There is a traffic light at the intersection of 12th and Pine Streets. The light was red on the 12th Street side, and cars were consequently backed up from the light. In an effort to get around those cars, the stolen car swerved into the oncoming lanes. At that moment the light turned green on 12th Street, and the stolen car was faced with oncoming traffic. The stolen car swerved left going 78 miles per hour into a parking lot, hit the curb, struck a concrete pillar, flew 63 feet into the air, landed, hit a parked car, and then a pedestrian, Marilyn York, who had just attended a wedding at a nearby church. The pedestrian was thrown a distance of 52 feet and instantly killed. The stolen car went 72 feet past the parked car and crashed into a nearby building. The appellant, the only person in the stolen car, got out and started to flee on foot. Patrolman Harmon chased him, and caught and arrested him two blocks away.

As set out, appellant was in possession of a stolen car. Consequently, he was charged with theft by receiving. That charge and subsequent conviction served as the underlying felony for the first degree murder conviction. Appellant’s first argument is that theft by receiving is not a felony which will support a first degree murder conviction pursuant to Ark. Code Ann. § 5-10-102(a)(1) (1987). That statute provides that a person commits murder in the first degree if “he commits ... a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he . . . causes the death of any person under circumstances manifesting extreme indifference to the value of human life.”

The statute plainly states that first degree murder is committed when one commits a felony and in the course of and furtherance of that felony or in flight therefrom causes death in the specified manner. It does not provide that only specified felonies qualify. Additionally, the commentary provides:

Section 5-10-102(a)(1) carries forward the felony murder doctrine. The Code provision differs from earlier law in that liability arises for a killing in the course of and in furtherance of any felony or in flight therefrom. The expansive effect of this change is circumscribed somewhat by the requirement that the death occur ‘under circumstances manifesting extreme indifference to the value of human life.’ Thus, the inadvertent killing during the course of a nonviolent felony does not constitute first degree murder ....

Appellant latches onto the final sentence of the commentary and takes it out of context to argue that theft by receiving cannot qualify as an underlying felony. In response, we note that the comment clearly tracks the statute and provides for guilt for killing in the course of, furtherance of, or flight from any felony. The word “any” is italicized. The commentary notes that the code may not be greatly expansive since the death must occur “under circumstances manifesting extreme indifference to the value of human life.” Finally, it provides: “Thus, the inadvertent killing during the course of a nonviolent felony does not constitute first degree murder.” Since the final sentence begins with “thus,” it hinges on the sentence immediately before it. The commentary is saying that since the death must be caused under circumstances manifesting extreme indifference to the value of human life, ordinarily an inadvertent killing during the course of a nonviolent felony will not constitute first degree murder, since it will not have that necessary component. Such a situation would not normally involve circumstances manifesting extreme indifference to the value of human life. However, the only limiting phrase in the commentary, and in the statute itself, is that the death must occur under circumstances manifesting extreme indifference to the value of human life. There is no requirement that the underlying felony be a violent one. Accordingly, appellant’s argument is without merit.

Appellant’s next argument is that there was not sufficient evidence to prove that he was in the course of, in furtherance of, or in flight from a felony since the theft was five (5) days earlier. This argument is also without merit. Appellant was charged and convicted of theft by receiving. In State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978), cert. den., 441 U.S. 964 (1979), we held that retaining possession of a stolen automobile is a continuing course of conduct, or a continuing offense. Conjointly, Ark. Code Ann. § 5-36-106(a) (1987) provides that a person commits theft by receiving if he retains stolen property, knowing it was stolen, or having good reason to believe it was stolen. Thus, theft by receiving is a continuing offense, and there was substantial evidence from which the jury could have found that the appellant retained the stolen property, knowing it to be stolen, or having good reason to believe it was stolen.

Appellant took the stand to deny that he knew the car was stolen; he maintained that he borrowed it from someone, and therefore, he argues, there was no substantial evidence to sustain his conviction for theft by receiving. However, an accused’s unexplained possession or control of recently stolen property is prima facie evidence of his guilt of theft by receiving. Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986). In Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979), we wrote that the unexplained possession or control of recently stolen property gives rise to a presumption that an accused knows or believes that the property was stolen. See Ark. Code Ann. § 5-36-106(c) (1987). Further, the reasonableness of the appellant’s explanation was a matter for the jury to assess, and the jurors were free to accept such part of his testimony they believed and free to reject that part they thought to be false. In short, there was sufficient evidence to support the conviction for theft by receiving and, accordingly, to support the underlying felony for first degree murder.

He next attacks the sufficiency of the evidence to support the first degree murder conviction by contending that the victim’s death did not occur “under circumstances manifesting extreme indifference to the value of human life.” The evidence set out at the beginning of this opinion was sufficient for the jury to find that this element of the crime was proven.

Appellant next argues that he was only charged with and convicted of misdemeanor fleeing which, as a matter of law, could not serve as the underlying felony to first degree murder. His argument, in detail, is as follows. Under Ark. Code Ann. § 5-54-125(a) (1987), a person is guilty of the offense of fleeing if he “knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer,” and flees from that officer. Under section (c) of the statute, fleeing shall be considered a Class C misdemeanor, except in certain circumstances. Section (c)(3) provides that where personal injury occurs to any person as a direct result of the fleeing, the offense shall be a Class D felony. Count 3 of the information, which contains this charge, reads in pertinent part as follows:

[C]harges Alvin Levelle Hall . . . with the crime of violating Ark. Stat. Ann. § 5-54-125 Fleeing, committed as follows, to-wit: The said defendant, in Pulaski County, Arkansas, on or about the 21st day of March, 1988, did unlawfully, flee from Officer Harmon, Little Rock Police, a duly authorized law enforcement officer, did unlawfully flee on foot, knowing that his immediate arrest or detention was being attempted after causing the death of Marilyn York, which was the direct result of the fleeing, against the peace and dignity of the State of Arkansas.

Appellant contends that under the wording of the information he was only charged with misdemeanor fleeing. He made a motion to reduce the charge at the end of the State’s case and again at the close of all the evidence. The trial court denied both motions. The trial court ruled correctly.

The appellant was fleeing from the patrolman when he killed Marilyn York. After he wrecked the stolen car he continued to flee on foot. Appellant contends he was only charged with fleeing on foot and that no injury resulted from that flight. The argument is without merit as the count charged that the appellant “did unlawfully, flee from Officer Harmon, Little Rock, Police, a duly authorized law enforcement officer, did flee on foot. . . .” That language indicates that the charge relates to the entire act of fleeing. The additional reference to Marilyn York’s death being the direct result of the appellant’s fleeing makes it unmistakably clear that the charge involved a Class D felony.

Appellant’s final point is that the conviction for fleeing should be merged into the conviction for first degree murder. This argument is also without merit.

The State did not rely on the appellant’s fleeing conviction as the underlying felony to support his first degree murder conviction; instead, the State relied upon the conviction for theft by receiving as the underlying felony. In any event, in Richie v. State, 298 Ark. 358, 767 S.W.2d 522 (1989), we held that only one underlying felony must be merged into a capital murder conviction. The same reasoning applies to a first degree murder conviction.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This court continues to expand the possibilities of conviction for multiple offenses growing out of one incident. The car the appellant was driving at the time of this fatal accident had been stolen five days earlier. For the purpose of this dissent, I will assume that the appellant stole the vehicle. However, he was charged with theft by receiving. Apparently that charge was easier to prove than it would have been to prove that he actually stole the vehicle. Nevertheless he was convicted of first degree murder in causing the death of a pedestrian with his automobile while fleeing from the commission of a felony. The information charged the appellant with fleeing, on foot, pursuant to Ark. Code Ann. § 5-54-125(1987). Certainly “on foot” and “in an automobile” are two different modes of travel. Nowhere in the charge does it allege that the appellant was fleeing after having committed a felony. The majority broadens the meaning of the statute to make it a continuing (day by day or hour by hour or perhaps minute by minute) felony to have in one’s possession stolen property. Under this theory a person could, for the same offense, be sentenced to as many felonies as a prosecutor desired.

Five days before the fatal accident, the owner’s vehicle had been stolen. The car was subsequently observed being driven by the appellant and he was then chased by a police vehicle. Apparently the reason the officer was chasing him was because the police knew the automobile had been stolen five days earlier. There is no doubt that the appellant was attempting to avoid arrest at the time'this fatal accident occurred. No one suggests that the pursuing officers thought the car had just been stolen and that the appellant was fleeing the scene from where he had stolen the vehicle. It was only stolen one time and that was five days before this unfortunate tragedy. I can find no evidence in the record to indicate exactly when the appellant came into possession of this vehicle.

Theft by receiving is defined in Ark. Code Ann. § 5-36-106(a) (1987): “A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.” The appellant received or stole the property at only one time so far as the record discloses.

The crime of receiving stolen property is committed where and when the property is received. Thompson v. State, 207 Ark. 680, 182 S.W.2d 386 (1944). The majority relies on the case of State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978), for the proposition that the felony of theft by receiving continues as long as the person receiving the property has it in their possession. Reeves does not support that position. Reeves had challenged the statute of limitations for filing a charge of theft by receiving. The Reeves opinion stated: “The question before us then is: when does the statute of limitations begin to run on the crime of theft by receiving . . . ?” The opinion held: “[f]or the purposes of [Ark. Code Ann. § 5-36-106(a)], an offense is committed either when every element of the offense occurs, or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time the course of conduct or the defendant’s complicity therein is terminated.” Under the interpretation given by the majority, the statute of limitations would never run on offenses of theft by receiving as long as the defendant remained in possession of the property. If, for example, a person received a load of stolen brick and used it in the construction of a house, he could be prosecuted for theft by receiving as long as he retained possession of the house.

The important point, however, is that the Reeves decision that theft by receiving is a continuing offense surely was never intended to “bootstrap” the offense of manslaughter into a conviction for first degree murder when the appellant obviously had been in possession of the property for several days. Certainly it cannot reasonably be asserted that the death occurred in the course of, or in furtherance of, or in flight from the crime of theft by receiving.

No person alive could have imagined that a pedestrian almost a block from the traffic light would be killed when the appellant attempted to evade striking other automobiles by driving into a parking lot at a fast rate of speed. Certainly the facts of this situation do not fit the criteria of acts which constitute first degree murder. Fleeing “on foot” could not possibly have been the felony underlying the first degree murder count because the death had already occurred before the “flight” started. If, on the other hand, the underlying felony was the theft of the automobile or receipt of the stolen property, then it was not in “immediate flight therefrom” within the meaning of the law.

It is my opinion that the appellant could lawfully have been found guilty of manslaughter and theft of property (or theft by receiving) and fleeing. However, he should not have been convicted of first degree murder.


author: Robert H. Dudley, Justice.

text:
    C. Mac NORTON v. H.A. TAYLOR
    89-5
    772 S.W.2d 316
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989
    [Rehearing denied July 17, 1989.]

      Bridges, Young, Matthews, Holmes & Drake, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

      Newbern, J., not participating.

   Robert H. Dudley, Justice.

Appellant, C. Mac Norton, is a licensed, practicing attorney. He was found to be in contempt of court for refusing to obey appellee’s, Judge H.A. Taylor’s, order to represent Albert Williams in a probation revocation hearing. The trial court sentenced Norton to twenty-four (24) hours in jail and fined him $600. We reverse.

On May 20, 1988, the State petitioned to revoke Albert Williams’ probation. Williams was not indigent. Appellant had represented Williams on two previous occasions when the State had attempted to revoke his probation. The matter was set for a hearing on June 27, 1988.

On May 27, 1988, appellant wrote appellee informing the court that he no longer represented Williams. Appellant was subsequently notified that appellee expected him to appear at the June 27 hearing to represent Williams. Appellant was present at the revocation hearing, and again informed appellee that he no longer represented Williams. Appellee then ordered appellant to represent Williams; however, appellant maintained his position that the court could not lawfully require him to represent the man. Appellee continued with the hearing, and at its conclusion revoked Williams’ probation. Appellant took no role in representing Williams at the revocation hearing.

Four days later, on July 1, 1988, appellee had a hearing in which he set aside his decision to revoke Williams’ probation, and told Williams to hire an attorney and to report back at a set date for a new revocation hearing. At the same hearing, on July 1, appellee held appellant in contempt of court for refusing to represent Williams at the June 27 hearing. Appellant was at all times respectful to appellee even though he persisted in his refusal to represent Williams.

Appellant does not challenge the trial court’s authority to appoint counsel for indigent defendants in criminal cases. Rather, the question he raises is whether appellee had the authority to order appellant to provide legal representation to a non-indigent defendant under the circumstances presented here. The answer is no.

It is not necessary for us to determine whether the attorney-client relationship between appellant and Williams had ended prior to May 20, 1988, because we find that even if that relationship was still in effect, appellee abused his discretion in refusing to allow appellant to withdraw his representation of Williams.

Lessenberry v. Adkisson, 255 Ark. 285, 499 S.W.2d 835 (1973), is a case with facts remarkably similar to those of the instant case. In Lessenberry we explained:

A client, of course, who has contracted for the services of an attorney, may discharge his attorney with or without cause . . . and it goes without saying that an attorney has the right to withdraw from his contract with a client when he does so with the client’s consent and approval and when the rights of others, or the administration of justice, are not affected by such action.

The client’s consent was not an issue in the instant case. Appellee argues, however, that appellant’s refusal to represent Williams affected the administration of criminal justice. That is, if attorneys were permitted to withdraw in such situations, the administration of criminal justice would be disrupted “because each time a petition to revoke were filed, the search for an attorney to represent the defendant would have to be made anew.” We do not agree.

As in Lessenberry, the trial court did not appoint appellant to represent Williams as an indigent defendant. Rather, appellee ordered appellant to appear in court and represent the non-indigent Williams in a revocation hearing. Further, appellant’s letter notifying the court that he did not represent Williams was dated May 27,1988 — seven days after the State filed its petition to revoke Williams’ probation and four weeks before the scheduled hearing date on the revocation petition. In Lessenberry, the notice to the court came just nine days prior to the defendant’s trial.

In short, appellant allowed the trial court sufficient time in which to make certain Williams obtained other counsel. The administration of criminal justice would not have been disrupted under these circumstances.

Reversed.

Glaze, J., concurs and would hold the attorney-client relationship had terminated.


author: David Newbern, Justice.

text:
    Jeannie GLASGOW v. CENTURY PROPERTY FUND XIX
    89-112
    772 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989

      Dodds, Kidd, Ryan & Moore, by. Donald S. Ryan, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee.
   David Newbern, Justice.

Jeannie Glasgow, the appellant, slipped, fell, and was injured on a snow-covered walkway at an apartment complex, owned by the appellee, Century Property Fund XIX (Century), where Ms. Glasgow was a tenant. She sued Century claiming her injury was caused by Century’s failure to close the hot tub area at the apartment complex while the snow was on the ground. The trial court granted Century’s summary judgment motion. The sole issue is whether Century, by virtue of its lease with Ms. Glasgow, had a duty to close the hot tub. We agree with the trial court’s decision that it undertook no such duty, and thus we affirm.

A tenant is not an invitee on her landlord’s premises but has a right equal to that of the landlord to exclusive possession of the property. See Knox v. Gray, 289 Ark. 507, 712 S.W.2d 914 (1986). In Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969), we adopted the Massachusetts rule to the effect that a landlord has no duty to a tenant to remove common hazards such as ice or snow from the parts of the premises in common use by tenants. We noted there that there was “no evidence in the case ... of any agreement or assumption of duty that removes” the landlord from the general rule. Thus, if Century had any duty toward Ms. Glasgow in these circumstances, it must have been spelled out in the lease.

The provision in the lease on which Ms. Glasgow relies states that the tenant will abide by written rules incorporated into the lease. The document entitled “Apartment House Rules” provided in its opening paragraph that the rules are for the tenants’ protection, and “[m]anagement reserves the right to take whatever steps may be necessary to enforce” the rules. Rule 9, entitled “Pool Rules” provided:

Swimming pool hours and rules are posted in the immediate pool area. These rules must be observed for the safety of all tenants and guests. Children may swim only when accompanied by an adult, and only between the hours of 10:00 a.m. to 12:00 noon. No more than two guests per apartment are allowed in the pool area, and they must be accompanied by the tenant they are visiting.

Nothing in the cited rules mentions the hot tub area. Even if we could assume the hot tub was in the vicinity of the swimming pool, the rules do not require Century to close the pool area when the weather is inclement.

The trial judge was correct; because Century had undertaken no duty to Ms. Glasgow to close the hot tub there could be no remaining genuine issue of material fact to be tried. Ark. R. Civ. P. 56. Thus, summary judgment was appropriate.

Affirmed.


author: Tom Glaze, Justice.

text:
    Ricky Lee JOHNSON v. STATE of Arkansas
    CR 88-193
    772 S.W.2d 322
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989
    [Rehearing denied July 17, 1989.]

      John W. Walker, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.

      Purtle, J., would grant rehearing. Newbern, J., not participating.

   Tom Glaze, Justice.

The appellant Ricky Johnson appeals from his conviction of two counts of burglary and two counts of rape from two separate jury trials. In addition, the appellant entered a conditional guilty plea to two additional counts of rape and burglary. Under A.R.Cr.P. Rule 24.3(b), the appellant reserves his right to withdraw his guilty plea if he should succeed in this appeal. From his convictions, the appellant was sentenced to a total of life plus fifty-seven (57) years. For reversal, appellant argues that the trial court erred in denying his motion to suppress his statement to the police and his fingerprints. Appellant makes the following two arguments in support of his motion to suppress: 1) he was not properly informed of his Miranda rights; and 2) the stop of his vehicle by the police was pretextual. We affirm.

On August 22, 1987, at 3:24 a.m., Officer Eric Higgins observed the appellant’s car going northbound in an alley that also serves as an entrance to an apartment complex parking lot. Officer Higgins was aware that some rapes had occurred in this area around this same time of morning a month earlier. Higgins also knew the police had received a suspicious person report, which reflected that on July 26, a 1978 Chevrolet Camaro had been seen in the same alley at 2:40 a.m., and on this same occasion, a black male was seen wandering around the apartments. Recognizing that appellant’s car matched the vehicle described in the earlier report, Officer Higgins followed the appellant in order to identify his car’s license tag number. The appellant then began making quick turns without the use of his turn signal. The officer eventually determined appellant’s tag number matched the one in the report, and he had the appellant pull over his car and stop. The only identification the appellant could produce was a labor card which bore no picture. Officer Higgins put the appellant under arrest for failure to present a driver’s license and failure to use a left turn signal. The officer testified that he could not just issue a citation to the appellant because the appellant had no proper identification. Police department policy, he said, required him to take persons without proper identification to detention.

After the proper árrest report was filed, the appellant was questioned by Detective Jones, who was investigating the rapes that had occurred in the area where the appellant had been stopped. The appellant was informed that he was a suspect in the rapes and was read his rights. The appellant made a statement in which he confessed to raping one of the prosecutrixes, and this statement was used as evidence in the first jury trial. After making his statement, the appellant was fingerprinted. These prints were found to match the prints in the home of one of the victims and were introduced as evidence in the second jury trial.

The trial court eventually severed appellant’s charges to permit two trials, but before doing so, it conducted certain pretrial hearings. Pertinent to this appeal, the trial court considered appellant’s motion to suppress, which the court initially granted at the end of an omnibus hearing on May 6, 1988. Another hearing on May 12, 1988 was held on the issue of whether the appellant’s fingerprints should be suppressed based on the fruit of the poisonous tree doctrine. The trial judge ruled that the fingerprints would be admissible. Apparently learning of this court’s decision in Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988), which was handed down on May 2, 1988, the state requested another hearing to present further testimony. The trial court granted the state’s request and at a hearing on June 6, 1988, the trial judge reversed his earlier decision and denied the appellant’s motion to suppress.

In reviewing the appellant’s first argument for the granting of a motion to suppress, we note that the Miranda rights form used was the exact form we found to be deficient in Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987). We have held this rights form to be deficient because it does not inform the accused that if he is indigent, an attorney will be appointed to represent him. After Mayfield, we decided Mitchell, 295 Ark. 341, 750 S.W.2d 936, which held that the officer’s testimony that he told Mitchell that an attorney would be appointed for him if he could not afford one cured the deficient rights form. See also Hurst v. State, 296 Ark. 448, 757 S.W.2d 558 (1988).

In the present case, Officer Jones testified at the May 6 omnibus hearing that during the reading of the rights, the appellant made a statement that “he did not want a public defender, and that whenever he needed or wanted an attorney, he would hire his own.” During the June 6 omnibus hearing, the trial judge was informed that the appellant had been represented by a public defender in connection with a previous charge. The appellant’s statement, we hold, is sufficient to cure the deficient rights form. Combined with the appellant’s previous experience with a public defender, the statement shows that the appellant readily knew that he had the right to have an appointed attorney if he could not afford to hire one on his own. While the appellant denies having made such a statement, such is a matter of credibility and we have stated that such matters are best determined by the trial judge. Jones v. State, 296 Ark. 135, 752 S.W.2d 274 (1988).

Likewise, we disagree with the appellant’s contention that the police made a pretextual stop. Although the appellant was charged with a traffic violation when he was taken to the police station, the record reflects that the police had probable cause to stop and to detain the appellant for the rape cases. See Addison v. State, 298 Ark. 1, 765 S.W.2d 566 (1989). Probable cause is defined as a reasonable ground of suspicion supported by circumstances sufficiently strong enough in themselves to warrant a cautious man to believe that a crime has been committed by the person suspected. Id. In Addison, this court affirmed the defendant’s detention by concluding that there was probable cause because he was seen in the same area and at approximately the same time as the rapes under investigation had occurred, he met the description of the rapist, he had no identification, and he-gave the officers several reasons for being in the area.

The situation here is similar to the one in Addison. The appellant was stopped in the same area and at approximately the same time as the rapes under investigation had occurred, his car was the car identified in the suspicious person report filed one month earlier, he took evasive action when the police car approached, he had no identification, and he met the general description of the rapist. We believe the above factors establish probable cause to stop and detain the appellant for investigation of the rape cases.

For the reasons stated above, we affirm.

       We note that the record on appeal is void of any order officially consolidating the appeals from these two trials, even though the cases were tried under the same case number. Since the issues before this court affect both of these trials, we consolidate the cases upon our own motion pursuant to Ark. R. App. P. 3(c).


author: Robert C. Compton, Special Chief Justice. Lonnie C. Turner, Special Justice,

text:
    Jimmie Lou FISHER, Treasurer of the State of Arkansas, et al. v. Samuel A. PERRONI, et al.
    89-166
    771 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989

      Steve Clark, Att’y Gen., by: Jeffrey A. Bell, Deputy Att’y Gen.; J. Mark Lewis, Asst. Att’y Gen.; and Joseph V. Svoboda, Asst. Att’y Gen., for appellants; and John H. Theis, Deputy Chief Counsel, and Rick Pruett, Counsel, for appellant Revenue Division.

      Dodds, Kidd, Ryan & Moore, by: RichardN. Moore, Jr., for appellee.
   Robert C. Compton, Special Chief Justice.

Appellants are officials of the State of Arkansas. Appellees are businessmen and taxpayers of the State of Arkansas. This case was brought against appellants in their official capacities, seeking declaratory and injunctive relief. The trial court entered a Summary Judgment and Order holding that Act 43 of 1989 violates Article 5, Section 39, of the Arkansas Constitution because it failed to receive a vote of three-fourths of the members elected to each House of the General Assembly.

The Summary Judgment and Order also holds that all other subsequently enacted appropriation acts of 1989 violate Article 5, Section 40, of the Arkansas Constitution because the General Appropriation Bill was not properly passed first by the General Assembly as required by Article 5, Section 40. The appellants were then enjoined from dispensing any state funds provided for in those appropriation acts. From that Summary Judgment and Order this appeal is taken.

The determination of the issues raised by this appeal require this court to review and apply the following provisions of the Constitution of Arkansas:

Article 5, Section 30. General and special appropriations. The general appropriation bill shall embrace nothing but appropriations for the ordinary expense of the executive, legislative and judicial departments of the State; all other appropriations shall be made by separate bills, each embracing but one subject.
Article 5, Section 39. State expenses Limitation Exceptions. Excepting monies raised or collected for educational purposes, highway purposes, to pay Confederate pensions and the just debts of the State, the General Assembly is hereby prohibited from appropriating or expending more than the sum of Two and One-Half Million Dollars for all purposes, for any biennial period; provided the limit herein fixed may be exceeded by the votes of three-fourths of the members elected to each House of the General Assembly. [As added to Art. 5 by Const. Amend. 19.]
Article 5, Section 40. General appropriation bill —• Enactment. In making appropriations for any biennial period, the General Assembly shall first pass the General Appropriation Bill provided for in Section 30 of Article 5 of the Constitution, and no other appropriation bill may be enacted before that shall have been done. [As added to Art. 5 by Const. Amend. 19.]

There is a strong presumption of constitutionality and validity attendant to every legislative enactment, and all doubt concerning an act must be resolved in favor of its constitutionality. Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973); Stone v. State, 254 Ark. 1011, 498 S.W.2d 634 (1973); Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). An act will not be held unconstitutional “unless there is a clear incompatability between the act and the Constitution; . . . the elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality.” Bush v. Martineau, 174 Ark. 214 at 216, 295 S.W. 9 (1927).

The appellants argue that Smith v. Page, 192 Ark. 342, 91 S.W.2d 289 (1936), holds that an appropriation for constitutional officers’ salaries and expenses is a just debt of the state, and therefore pursuant to Article 5, Section 39, such appropriation requires only a majority vote of each House of the General Assembly.

However, the holding in Smith v. Page, supra, is that an appropriation for salaries of constitutional officers is self-executing and the passage of a supporting appropriation bill is unnecessary. Even if such salaries are just debts of the state, this court has previously ruled in Humphrey, State Auditor v. Garrett, 218 Ark. 418, 236 S.W.2d 569 (1951), that Article 5, Section 39, requires a vote of three-fourths of the membership of both Houses of the General Assembly for passage of an appropriation bill. In Humphrey, supra, the appropriation was for educational purposes. However, the same reasoning applies to an appropriation for a just debt.

Humphrey also holds that Article 5, Section 39, authorizes passage of appropriations by a bare majority only from “monies raised or collected for educational purposes . . . and the just debts of the state.” (Emphasis ours.) This section does not allow appropriation by a bare majority of more than $2,500,000.00 from any other source regardless of the purpose of the expendíture. Act 43 of 1989 appropriates from fund sources other than those enumerated in Article 5, Section 39, and even if the constitutional officers’ salaries are “just debts” of the state as the appellants argue, appropriation for them must be by three-fourths vote of both houses.

Additionally, the Humphrey court said:

The wisdom of the policy that burdens appropriations with this handicap may be questioned and the procedure criticized, yet the fact remains that in 1934 the electorate adopted the amendment by a vote of 99,223 to 25,496 — a majority of almost four to one. 218 Ark. at 420.

Regardless of our personal preferences and the cumbersome nature of the Constitution of 1874, with its many amendments, we are compelled to hold that Act 43 of 1989, lacking the requisite three-fourths vote, is invalid.

The appellants also argue that even if Act 43 did not receive a three-fourths vote, it “passed” both Houses of the General Assembly. We cannot agree.

Black’s Law Dictionary defines “passed” thusly:

“In legislative parlance, a bill or resolution is said to pass when it is agreed to, or enacted by the House, or when the body has sanctioned its adoption by the requisite majority of votes.” [Emphasis ours.]

Article 5, Section 40, states that the General Assembly shall first pass the General Appropriation Bill before any other appropriation bill may be enacted. Here the requisite majority is three-fourths of the membership. The bill did not pass.

For the reasons stated, the order of the lower court must be affirmed and the clerk is directed to issue an immediate mandate.

Special Justice Lonnie C. Turner dissents.

Holt, C.J., Hickman, Purtle, Dudley, Hays, Newbern, and Glaze, JJ., not participating.

Special Justices Bill Walmsley, Sam Ed Gibson, Berlin Jones, Georgia Elrod and Judy Strother join in this opinion.

Lonnie C. Turner, Special Justice,

dissenting. Article 5, Section 31 provides that any appropriation would require a two-thirds vote of the majority unless it falls within the exceptions therein contained: (1) for payment of the just debts of the State, (2) for defraying the necessary expenses of government, (3) to sustain the common schools, (4) to repel invasion and (5) to suppress insurrection; then only a majority vote is required.

Article 5, Section 39 (from Amendment 19) provides two additional exceptions (1) money raised or collected for highway purposes and (2) moneys raised or collected for confederate pensions. It places additional restrictions on the common schools and the just debts of the State by requiring that these two likewise be by funds raised or collected for their purposes. It did not disturb necessary expenses of government, repel invasions or suppress insurrections. Humphreys v. Garrett does not apply.

After these exceptions the general assembly may not spend more than 2.5 million unless they by three-fourths vote raise the limit. It could then be appropriated by two-thirds vote under Article 5, Section 31.

Act 43 of 1989 appropriates funds for the executive, legislative and judicial; constitutionally mandated offices; therefore I would find it for defraying the necessary expenses of government requiring only a majority vote.


text:
    Sylvia Dianne VINEYARD v. STATE of Arkansas
    RC 89-25
    771 S.W.2d 289
    Supreme Court of Arkansas
    Opinion delivered June 19, 1989

      No response.
   Per Curiam.

Appellant Sylvia Dianne Vineyard, by her attorney, has filed for a rule on the clerk. The attorney, Don G. Gillaspie, admits that the failure to file the record in time was due to fault on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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