author: Tom Glaze, Justice. David Newbern, Justice, Steele Hays, Justice, Robert L. Brown, Justice,

text:
    Ranger Thomas THORNTON v. STATE of Arkansas
    CR 93-501
    878 S.W.2d 378
    Supreme Court of Arkansas
    Opinion delivered June 6, 1994
    [Rehearing denied July 11, 1994.]

      Thomas D. Deen, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This is a second appeal following our decision in State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991) (Thornton I). In Thornton I, Ranger Thornton had pled guilty in municipal court to the traffic offenses of speeding, reckless driving, and drinking on the highway. Although he pled not guilty to the added offenses of running a red light and destruction of public and private property, he was later convicted of those two misdemeanor offenses as well.

Six months after disposition of the five offenses in municipal court, the state filed an information in circuit court, charging Thornton with felony manslaughter. The court dismissed the felony charge on double jeopardy grounds, stating that to prove manslaughter the state had to prove conduct that constituted an offense(s) for which Thornton had already been convicted. The state appealed, and this court reversed, holding that the trial court erred in dismissing, prematurely, the manslaughter charge without first giving the state the opportunity to respond to Thornton’s dismissal motion. We suggested the trial court was wrong in assuming the state would not be able to prove the elements of the crime of manslaughter without relying on Thornton’s same conduct for which he had previously been convicted in municipal court. In this respect, we cited Grady v. Corbin, 495 U.S. 508 (1990), and the two tests set out therein determining whether double jeopardy bars a prosecution.

On remand, and at the end of the state’s case, the trial court held that the state met its evidentiary burden under Grady in showing that double jeopardy did not attach so as to bar its prosecution of Thornton for manslaughter. The trial court also denied Thornton’s second defense raised on remand, asserting his right to speedy trial had been violated. In this appeal, Thornton seeks reversal of his conviction based upon the double jeopardy and speedy trial issues he raised below. We consider Thornton’s speedy trial argument first, since it is dispositive of this appeal.

Under Arkansas’s speedy trial rule Ark. R. Crim. P. 28.1(c), any defendant charged in circuit court and held to bail, or otherwise lawfully set at liberty, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months from the time provided in Rule 28.2, excluding only such periods of necessary delay authorized under Rule 28.3. Thornton bases his argument on Ark. R. Crim. P. 28.2(a), which provides that a defendant’s speedy trial time generally begins to run from the date a charge is filed in circuit court, unless the defendant has been arrested and is in custody, out on bail, or has been lawfully set at liberty, in which case time runs from the date of arrest.

Here, Thornton was arrested on May 2, 1990 — the date he contends is controlling from which the twelve-month period should commence. This being so, the state had until May 2, 1991 to bring Thornton to trial unless certain periods of delay authorized under Rule 28.3 were excludable from the initial twelvemonth period. In other words, the initial twelve-month period can be extended by the length of time of any of the excluded periods authorized in Rule 28.3. Thornton was not tried on the manslaughter charge until October 6, 1992 — 886 days from his date of arrest on May 2, 1990. Accordingly, under Thornton’s argument, the state had the burden to show excludable periods of delay, totalling 521 or more days (886 - 365). The state failed to meet that burden.

From our review of the record, the following excludable periods of delay are allowed under Rule 28.3 and can be used by the state in calculating Thornton’s twelve-month speedy trial time:

October 8, 1990 through November 13, 37 days
1990 (Thornton’s motion for mental exam)
December 12, 1990 through October 4, 297 days
1991 (Trial court’s initial dismissal order of manslaughter charge and supreme court’s reversal and issuance of mandate in Thornton I appeal)
January 3, 1992 through February 10, 30 days
1992 (State’s November 5, 1991 motion seeking excludable periods of delay and Thornton’s November 6, 1991 pretrial motion to dismiss — ruled on by trial court on January 3, 1992, but order was not entered until February 10, 1992)
February 14, 1992 through June 8, 1992 114 days
(Delay resulting from Thornton’s petition for writ of prohibition before supreme court, challenging trial court’s denial of Thornton’s motion to dismiss and supreme court’s denial without prejudice)
September 10, 1992 through October 6, 1992 27 days
(Thornton’s motion for continuance) _
505
excludable
days

After allowing the foregoing 505 excludable periods and deducting them from the 886-day period from Thornton’s date of arrest and his trial date, the state was sixteen days late in bringing Thornton to trial.

The state does not question the excludable periods of delay listed above, nor does it offer any new ones. Instead, it simply argues that Thornton’s reliance on Rule 28.2(a) and the speedy trial commencement date from the date of Thornton’s arrest is inapplicable here. The state points to its earlier appeal in this case, Thornton I, and citing Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993), argues Rule 28.2(c) controls and provides for a new twelve-month speedy trial period to commence from the date this court issued its mandate on October 4, 1991. Under the state’s argument, Thornton’s trial on October 6, 1992 was held 367 days (twelve months, two days) after the new commencement date, and the excludable days during that period were more than sufficient to bring the state’s prosecution of Thornton within the required twelve-month period. The state’s argument, while creative, is somewhat misguided.

Rule 28.2(c), the rule relied on by the state, provides that, if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial, order granting a new trial or remand. Before Rule 28.2(c) applies, the provision plainly presumes, at the least, the state had commenced trying its case against the defendant and the trial concluded in a mistrial or the defendant had been tried but his conviction had been set aside, appealed, or collaterally attacked. In the Clements case relied upon by the state, the defendant had been tried, convicted and sentenced, but his conviction was overturned on appeal and remanded for a new trial.

In the present case, no trial had been commenced, much less concluded, against Thornton. Rather, Thornton’s pretrial motion to dismiss had been granted barring his prosecution and trial. In this respect, the trial court’s order dismissing the state’s charge against Thornton was a final one and one from which the state could and did appeal. See Edwards v. State, 310 Ark. 516, 838 S.W.2d 356 (1992). It is also settled that, for Sixth Amendment purposes, the appeal time, during which Thornton’s felony charge had been dismissed freeing him of all liberty restrictions, should be excluded from the length of delay considered under the Speedy Trial Clause. See United States v. Loud Hawk, 474 U.S. 302 (1986).

Because the dissenting opinion confusingly alludes to some dates and events it suggests are excludable, we are obliged to correct and clarify those references. The dissenting opinion refers to the defense’s November 6, 1991 speedy trial motion to dismiss which it suggests warrants another excludable period. It also refers to an amended motion to dismiss filed by the defense on January 3, 1992. The January 3, 1992 amended motion is one which the trial court considered on the same date the motion was filed. Actually, the state initiated this period by filing its November 5, 1991 motion to determine excludable periods to which Thornton responded with his motion to dismiss filed on November 6, 1991. By order dated December 6, 1991, the trial court set these motions (and others) for hearing on January 3, 1992, when it denied Thornton’s motion (and amended motion) by erroneously ruling the state had one year from the Arkansas Supreme Court’s reversal and issuance of mandate in Thornton I. In sum, while the dissenting opinion refers to the foregoing dates and events as warranting different excludable periods, only one thirty-day excludable period is involved under Rule 28.3(a) — from January 3, 1992 and the following thirty-day period it withheld its order denying Thornton’s motion to dismiss.

Next, the dissenting opinion suggests an excludable period of forty-two days should be attributable to Thornton’s motion for continuance filed on August 26, 1992. By its own order, the trial court specifically determined this excludable period runs from September 10, 1991 until October 6, 1992 — twenty-seven days.

The dissenting opinion also summarily asserts an eighteen-day period should be excluded from the speedy trial rules because of the defense’s October 11, 1991 motion for bill of particulars which the trial court granted on November 4, 1991. Again, the state did not argue this period below or on appeal. The state, of course, is required by way of a bill of particulars to state its action in sufficient certainty to apprise the defendant of the specific crime with which he is charged in order to enable the defendant to prepare his defense. Ark. Code Ann. § 16-86-301 (1987). The record, including the trial court’s docket entries, fails to reflect any delay resulted from Thornton’s request for a bill of particulars which the state was obliged to provde in the first instance. And if any delay can be said to have resulted, certainly no good cause was provided by the state for it.

Finally, the dissenting opinion asserts the state in this case made timely and repeated attempts to bring Thornton to trial, leaving the impression that the state did all it could to comply with the speedy trial rules. We would first point out that, after this case was remanded for trial, the state requested no trial date and none was set for more than ten months. This court ’s appellate mandate was issued on October 4, 1991, and it was August 12, 1992 when the trial court set the first trial (after remand) to be held on September 17 and 18, 1992. The dissenting opinion erroneously refers to a date of March 30, 1992, but that date was set for a hearing, not a trial. We would also note that, before Thornton I and when the trial court had the state’s case against Thornton set for trial on November 14, 1990, the state chose to nolle prosse its case on November 13, 1990. The state then refiled charges against Thornton on November 20, 1990.

In sum, we conclude that, under the facts presented here, the state’s speedy trial rules patently bar Thornton’s prosecution. Even though the state’s time to bring Thornton to trial was legally extended from his date of arrest by 505 days (giving the state allowance for its appeal and delays due to Thornton’s pretrial trial motions after remand), the state still failed to meet the required twelve-month speedy trial deadline provided under Rule 28. For the reasons given above, we must reverse and dismiss.

Hays and Brown, JJ., dissent. Newbern, J., concurs.

David Newbern, Justice,

concurring. The State appealed from an order dismissing charges against Ranger Thomas Thornton. The dismissal was based on former jeopardy. This Court reversed, and thus Mr. Thornton was again subject to trial. As the majority opinion explains, more than a year of delay chargeable to the State occurred from the time Mr. Thornton was charged.

The State argues Ark. R. Crim. P. 28.2(c) applies and causes the one year period within which he must be tried to recommence with the return of the mandate to the Circuit Court. The majority opinion correctly explains that Rule 28.2(c) does not apply because there is not to be a “retrial.”

Justice Brown’s dissenting opinion states we should affirm the conviction because the correct result was reached by the Trial Court in view of Rule 28.2(b) which provides, “when the charge is dismissed upon motion of the defendant and subsequently the defendant is arrested or charged with an offense, the time for trial shall commence running from the date the defendant is subsequently arrested or charged, whichever is earlier.” Justice Brown suggests that language should apply, even though there has been no subsequent arrest or charge, because the original charge has been the subject of a “resurrection.”

If Rule 28.2(b) were clearly applicable, I would not hesitate to apply it in this case even though it has not been argued to us. Application of the Rule here, however, requires forcing or stretching the language of the Rule to fit the facts of this case. We should reserve our prerogative of affirming on the basis of a point not argued for cases in which affirmance is clearly justified rather than one in which we engage in a somewhat questionable, first impression interpretation of a court rule.

While the suggested interpretation of Rule 28.2(b) is tempting, in the circumstances presented 1 must concur and agree fully with the majority opinion.

Steele Hays, Justice,

dissenting. Appellant was convicted of drinking on a highway, driving 80 miles per hour in a 35 mile per hour zone, reckless driving, running a red light and destruction of public and private property, all arising from conduct occurring on May 2, 1990. A passenger in a vehicle that had waited for the light to turn green before entering the intersection was killed. On July 23, 1990, appellant was charged with manslaughter, a felony. He was tried, convicted, sentenced to five years and fined $2,000. He is now exonerated of that offense, not because the state was derelict in bringing him to trial, but because he successfully avoided trial time after time.

This is another sad example of the fallacy of a speedy trial rule based simply on the calculus of time and nothing more. I have expressed my views on a mechanical approach to speedy trial in Dupree v. State, 316 Ark. 324, 891 S.W.2d 570 (1994) and Weaver v. State, 313 Ark. 55, 852 S.W.2d 130 (1993), and need not repeat them here. I merely point out that the state made timely and repeated attempts to bring the appellant to trial. The case was first scheduled for trial on October 16, 1990. That trial was avoided by appellant’s asserted defense of mental disease or defect and motion for a mental examination. The case was reset for trial on November 14, 1990, and the state subpoenaed its witnesses. That attempt was met with a motion by the defense to dismiss on the grounds of former jeopardy, resulting in a motion to nolle prosequi by the state which was granted on November 8, 1990, with no objection by the defense. The case was promptly refiled. After being reversed and remanded by this court the case was next set for a hearing on March 30, 1992, and that attempt was met with a motion by the defense for a continuance. On August 12, 1992, the case was set for trial on September 17, 1992. Again, that attempt'was avoided by appellant’s motion for a continuance. In sum, on four separate occasions trials or hearings met with delays requested by the appellant. This court has said, “It is not the responsibility of a defendant to bring himself to trial.” I agree, but I also suggest that claims by a defendant that he has been denied a speedy trial should be measured in the light of whether diligent efforts by the state to bring him to trial have been repeatedly circumvented until time becomes his weapon. See Barker v. Wingo, 407 U.S. 514 (1972).

Nor can I reconcile the majority’s calculation of sixteen days with the record. The majority excludes thirty days attributable to Thornton’s pretrial motion to dismiss after remand (January 6 through February 5, 1992). However, the motion was filed on January 3 and the order is dated February 7, reducing the sixteen days to eleven. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988). Moreover, the majority excludes twenty-seven days attributable to Thornton’s motion for a continuance (September 10 through October 6, 1992). But the motion to continue the September 17 trial setting was filed on August 26, and thus, an excludable period of forty-two days rather than twenty-seven, eliminating the sixteen days entirely with four days to spare. The majority opinion notes that the state does not argue these discrepancies before the trial court or on appeal. But it is the appellant’s burden to demonstrate error, not vice versa, and we affirm the trial court even if for a different reason. Moreover, it is our consistent practice to consult the record to affirm the trial court. Since the trial court sustained the state’s contention that after remand the speedy trial began anew under A.R.Cr.P. 28.2(c), there was no particular reason to count days precisely.

Even using the calendar method, there are excludable periods not mentioned by the majority in calculating that the state was sixteen days late in bringing Thornton to trial: on October 11, 1991, (after remand) the defense filed a motion for a bill of particulars, which was granted on November 4, 1991, an excludable period of eighteen days under Rule 28.3. On November 6, 1991, the defense filed a motion to dismiss for lack of a speedy trial, which the state moved to dismiss and which culminated in the recusal of the sitting special judge and the assignment of the case to another circuit judge. On December 5, Judge Ligón notified Judge Roberts of the transfer and on December 6, 1991, the appellant’s motion to dismiss was set for a hearing on January 3, 1992, some part of which (arguably all) is an excludable period under Rule 28.3(h). On January 3, 1992, the defendant filed an amended motion to dismiss based on former jeopardy. On February 7, 1992, the motions to dismiss were denied. Some of the periods may vary, depending on one’s interpretation, but even a conservative count more than offsets the majority’s sixteen days.

The majority opinion states that “for more than ten months” (October 4, 1991 to August 12, 1992) the state requested no trial date and none was set. That not only ignores numerous motions and counter motions filed in October, November, December, and indeed up until the day of the January 3, 1992, hearing (some of which have been noted), the recusal and replacement of the trial judge, but more particularly, it disregards the fact that on February 14, 1992, the appellant filed a notice of appeal from the denial of his motion to dismiss on grounds of double jeopardy. He then obtained permission to proceed in forma pauperis and obtained a record on May 4, 1992. When the record was lodged here on May 20 it was presented, not as an appeal, for obvious reasons, but as an original action in prohibition, which this court denied on June 6, 1992. During this interval the trial proceedings were suspended. The state is hardly chargeable with this gap in time.

For the reasons stated here and in Justice Brown’s dissenting opinion, with which I fully agree, I would affirm the judgment.

Robert L. Brown, Justice,

dissenting. This manslaughter charge was dismissed by the circuit court on December 12, 1990, on double jeopardy grounds. As of that date no manslaughter charge existed against Thornton. The State appealed and this court reversed the dismissal and remanded the matter for a hearing on the motion to dismiss. The mandate from this court was entered in the circuit court on October 7, 1992. That mandate had the effect of reinstating the manslaughter charge against Thornton which means the mandate date is the date from which the speedy trial time should run. See Grable v. State, 649 P.2d 663 (Wyo. 1982). Thornton was tried on October 6, 1993, within the 12-month period.

The majority seeks to tack on time accumulated before the circuit court dismissed the charge in calculating a speedy trial violation. However, our criminal rules without question contemplate running the time for speedy trial purposes from the date that a charge is effective. In this case, that date was when the manslaughter charge was resurrected by court order.

Rule 28.2(b) of the Criminal Rules closely approximates the circumstances of this case:

The time for trial shall commence running, without demand by the defendant, from the following dates:
(b) when the charge is dismissed upon motion of the defendant and subsequently the defendant is arrested or charged with an offense, the time for trial shall commence running from the date the defendant is subsequently arrested or charged, whichever is earlier;

Prior to this court’s mandate, the charge had been dismissed by the circuit court and was void and of no effect. The revival of the charge was comparable to a subsequent charge under Rule 28.2(b).

We have interpreted our Rules of Criminal Procedure in the past to accommodate the intent of the rule. See Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993). In Bolt, we held that the requirement that a defendant “personally” waive a jury trial did embrace a waiver by the attorney when the defendant was present. Similarly, in this case we should recognize the virtual sameness for speedy trial purposes between reviving a moribund charge and a subsequent charge under Rule 28.2(b).

Furthermore, the majority’s interpretation will adversely affect the State’s decision to appeal if time prior to the State’s appeal counts against the 12-month period. In some cases the accumulated period prior to a circuit court’s dismissal might be considerable which would render an appeal by the State a useless endeavor. The right of the State to appeal should not be encumbered in this fashion.

The majority’s rebuttal in part is that the State did not argue Ark. R. Crim. P. 28.2(b) to this court or to the circuit court. Yet, we can affirm for an alternative reason when the circuit court reaches the correct result. See Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).

Again, the charge was reactivated when the mandate issued. The time should run from that date. I respectfully dissent.

Hays, J., joins.

       in U.S. v. Dixon, 113 S.Ct. 2849 (1993), the Supreme Court overruled Grady stating, among other things, that the “same-conduct” rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.

       Excludable as period of delay resulting from hearing on pretrial motions under Rule 28.3(a). Period of time in excess of thirty days such motion is held under advisement is not to be considered as excludable period.

       The 886-day period minus 505 days is 381 days. In deducting the 365 days or twelve-month speedy trial period from 381 days, sixteen days arc left.

       It appears undisputed that the three excludable periods listed previously in this opinion were chargeable to Thornton and occurred after this court’s remand on October 4, 1991 in Thornton 1. These periods totalled 171 days.

       We note one of the dissenting opinion’s reliance upon Rule 28.2(b) — a provision not mentioned by the state in its argument. That provision, by its plain wording, becomes effective when a defendant is either arrested or charged a second time after the charge had been dismissed upon the defendant’s motion. Thornton was neither arrested nor charged again by the state, and Rule 28.2(b) is simply inapplicable.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    CITY OF HOT SPRINGS ADVERTISING and PROMOTION COMMISSION v. Daryn COLE D/B/A Cole Catering
    93-1390
    878 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered June 6, 1994

      David H. White, for appellants.

      Carl A. Crow, Jr., for appellee.
   Robert L. Brown, Justice.

In May of 1992, the City of Hot Springs Advertising and Promotion Commission entered into a written contract entitled “Combined Contract for Food and Beverage Services for Mid-American Museum and Hot Springs Convention Auditorium” with Daryn Cole d/b/a Cole Catering. Cole was to provide food and beverages for the Commission’s sanctioned events. The Commission purportedly was to receive a commission on those sales from Cole as well-as revenues generated by the hotel and restaurant tax. On December 18, 1992, Cole allegedly decided to withdraw from the contract. On December 31, 1992, the Commission sued Cole for breach of contract and prayed for the sum of $15,375.39 which, it alleged, included unpaid commissions and taxes due the Commission under the catering contract. Cole denied the allegations in an answer filed January 25, 1993, and asserted that the Commission was not an independent legal entity which could sue or be sued in its own name. Cole also counterclaimed for equipment and inventory allegedly taken by the Commission and for catering services, all of which Cole valued at $9,458.10.

On May 14, 1993, Cole moved to dismiss the Commission’s complaint under Ark. R. Civ. P. 12(b)(6) and urged once again that the Commission had no separate legal standing independent of the City and, thus, could not commence a lawsuit in its own name. The circuit court heard the motion and found that the Commission was not empowered by statute to sue or be sued, which effectively disposed of the actions raised in both the complaint and counterclaim. The court dismissed the Commission’s complaint with prejudice. The Commission now appeals that order and has filed its brief. Cole, as appellee, chose not to file a responsive brief.

Some background on advertising and promotion commissions is necessary for an understanding of this case. The City of Hot Springs Advertising and Promotion Commission is an outgrowth of the Advertising and Promotion Commission Act, Act 185 of 1965, now codified at Ark. Code Ann. § 26-75-601, et seq. (1987). That Act authorized a city of the first class to levy by ordinance a gross receipts tax on hotels and restaurants. Ark. Code Ann. § 26-75-602 (1987). The levied tax was to be collected by the city, and the enforcement of that collection was to be by the city through proper city officials. Ark. Code Ann. § 26-75-603 (1987). Act 185 further authorized a city to establish a fund from the collected taxes and to create an advertising and promotion commission to use that fund to promote the city and its surrounding areas. Ark. Code Ann. § 26-75-604, etseq. (1987). With the enactment of Act 626 of 1989, these advertising and promotion commissions were expressly authorized to contract with civic groups and the chamber of commerce to provide “actual services that are connected with tourism events or conventions.” Ark. Code Ann. § 26-75-606(c)(3) (Supp. 1991).

The sole issue raised by the Commission in this appeal is whether the Commission, separate and apart from the City, could sue to collect the hotel and restaurant tax and to collect commissions from Cole on food and beverages sold under the contract at the time it filed its complaint on December 31, 1992. On that date, no mandate from the General Assembly existed which authorized the Commission to collect the hotel and restaurant taxes or to sue to enforce that collection. Under Ark. Code Ann. § 26-75-603 that authority was expressly vested in the cities. It was only after the complaint was filed in this matter, and specifically on March 4, 1993, when the General Assembly enacted Act 364 with an emergency clause, that the advertising and promotion commissions were authorized to collect the tax and to bring enforcement actions.

Despite the enactment of Act 364, based on the record before us the Commission did not argue the Act to the circuit court as a predicate for its authority to sue; nor did it argue the retroactive application of Act 364 to this matter. Because the circuit court did not have an opportunity to consider the Act 364 arguments, we will not entertain them on appeal. We do not consider arguments for reversal that were not presented to the circuit court for its consideration. See Kolb v. Morgan, 313 Ark. 274, 854 S.W.2d 719 (1993).

The Commission’s sole argument to the circuit court was that it had the authority to operate the advertising and promotion fund for the City of Hot Springs and that the power carried with it the concomitant authority to contract. From that power to contract flowed the power to sue Cole for breach, according to the Commission. Cole argued, in support of its motion to dismiss, that the only authority to contract granted the commissions by the General Assembly was a specific authority to contract with civic groups and the chamber of commerce •— not with food and beverage vendors. The circuit court concluded that cities were granted the power to sue by the General Assembly, but that a comparable authority had not been vested in the commissions. The court did decide that the Commission had been given the power to contract under Act 626 of 1989, but the court refused to read an authority to sue for breach of contract into Act 626.

The Arkansas General Assembly has deemed cities in Arkansas to be bodies politic and corporations which are capable of suing and being sued. Ark. Code Ann. § 14-54-101(1) (1987); see also Deason v. City of Rogers, 247 Ark. 1061, 449 S.W.2d 410 (1970). This court has also recognized that the General Assembly has extended the right to sue and be sued to various entities, including school districts, housing authorities, improvement districts, levee boards, and drainage districts. See, e.g., Hilton v. Pine Bluff Public Schools, 295 Ark. 397, 748 S.W.2d 648 (1988); City of Ft. Sm. Housing Auth., 256 Ark. 254, 506 S.W.2d 534 (1974); Reeme & Rhodes v. Nat. Gas Imp. Dist., 247 Ark. 983, 448 S.W.2d 647 (1970); Muse v. Prescott School Dist., 233 Ark. 789, 349 S.W.2d 329 (1961); Kerr v. East Central Arkansas Regional Housing Authority, 208 Ark. 625, 187 S.W.2d 189 (1945); Drainage District No. 7 of Poinsett County v. Hutchins, 184 Ark. 521, 42 S.W.2d 996 (1931). No such express power to sue had been vested in the Commission by the General Assembly at the time it filed its lawsuit in this case.

The circuit court did find that the Commission had a statutory power to contract. That authority, however, is limited:

(c)(1) All local taxes levied as authorized in § 26-75-602(a) shall be credited to the city advertising and promotion fund and shall be used for the purposes described in subsections (a) and (b) of this section.
(2) Such taxes shall not be used:
(C) For general subsidy of any civic groups or the chamber of commerce.
(3) However, the advertising and promotion commission may contract with such groups to provide to the commission actual services that are connected with tourism events or conventions.

Ark. Code Ann. § 26-75-606(c) (Supp. 1991). The express grant to contract is with civic groups or the chamber of commerce and does not specifically include vendors like Cole, who provide food and beverages for Commission projects.

The Commission urges, however, as it did before the circuit court, that by virtue of its administration of the advertising and promotion fund the power to contract with vendors and the power to sue for breach of contract necessarily follow. The Commission posits that certain powers do fall to city agencies where it is reasonable to infer those powers from an agency’s other duties. A power in the Commission to contract with vendors may reasonably be inferred from the Advertising and Promotion Act but we have not gleaned the power to sue from a legislative act where the basis for the implied authority is as tenuous as it is in this case. On the contrary, in one case where an airport commission sued to enforce an airport lease, we noted specifically that the complaint was actually a suit brought by the city through its agency, the airport commission. Terry v. Cities of Helena and West Helena, 256 Ark. 226, 506 S.W.2d 573 (1974). Here, the City of Hot Springs is not a named party. In short, we conclude that the statutory premise upon which the inference to sue rests must be more substantial than it is in this case.

The cases cited by the Commission in support of an implied power to sue are either not apposite or distinguishable. See City of Ward v. Ward Water and Sewer System, 280 Ark. 177, 655 S.W.2d 454 (1983); Civil Service Comm’n of Harrison v. Reid, 261 Ark. 42, 546 S.W.2d 413 (1977); Sewer Improvement Dist. No. 1 of Sheridan v. Jones, 199 Ark. 534, 134 S.W.2d 551 (1939). The Sewer Improvement Dist. No. 1 case concerned the ability of an improvement district to be sued either at law for damages or in equity. This case differs because the statutory powers granted to municipal sewer improvement districts in 1939 were clearly more expansive than those granted to advertising and promotion commissions at the time of the Commission’s complaint. In Civil Service Commission v. Reid, a decision of the Commission to terminate the police chief was appealed by the deposed chief to circuit court. The Commission was an appropriate party to that appeal. And in City of Ward v. Ward Sewer System, the water and sewer system sued in the names of its commissioners to prevent the city from abolishing it. We held that the City had the right to abolish what it had created. A system’s cause of action to prevent its termination presents a different issue from the power of an agency to sue on the city’s behalf.

In sum, the mere power to administer the advertising and promotion fund did not imbue the Commission with the power to sue to collect hotel and restaurant taxes, especially when the General Assembly had expressly invested the City of Hot Springs with that authority at the time the complaint was filed. Nor do we read an implied power into the Advertising and Promotion Act for the Commission to sue to collect commissions on the sale of food and beverages.

Affirmed.

Glaze, J., dissents.


text:
    Eric Lamont WALTER v. STATE of Arkansas
    94-79
    878 S.W.2d 374
    Supreme Court of Arkansas
    Opinion delivered June 6, 1994

      William R. Simpson, Jr., Public Defender, by: Kent C. Krause, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Eric Lamont Walter files this interlocutory appeal based on the refusal of the circuit court to transfer this matter to juvenile court for treatment as a delinquency case. His argument on appeal is that he did not employ violence in the offenses alleged against him and, as a consequence, he should be transferred to juvenile court under the Blevins v. State rationale that his offenses are serious ones but not violent in nature. See Blevins v. State, 308 Ark. 613, 826 S.W.2d 265 (1992). We disagree, and we affirm the decision of the circuit court.

The facts which the State intends to prove in this case were related by Officer Ronnie Smith of the Little Rock Police Department at the transfer hearing. On July 21, 1993, at about 9:05 p.m. two young men including Walter approached a car driven by Stephanie Boren as it was leaving an automated teller machine on Baseline Road in Little Rock. Kimberly Vanbibber was a passenger in the car. The young man with Walter, Lebrian Holly, fired a pistol at the car five or six times, wounding Boren in the chest, arm, and back and wounding Vanbibber in the wrist. At the direction of the gunman, Vanbibber dropped her wallet out the car window and Boren did the same with her purse. Walter picked up the wallet, Holly picked up the purse, and the two men then fled.

Three days later Walter, who was age 17, turned himself in to the Little Rock Police Department and gave a statement admitting his involvement. He and Lebrian Holly were charged as adults with two counts of aggravated robbery under Ark. Code. Ann § 5-12-103 (Repl. 1993), two counts of misdemeanor theft under Ark. Code Ann. § 5-36-103 (Repl 1993), and two counts of terroristic acts under Ark. Code Ann. § 5-13-310 (Repl. 1993). Both counts of aggravated robbery stated that Walter and Holly used or threatened to use a gun to effect a theft. The two counts for terroristic acts stated that Walter and Holly shot at a car with the purpose of causing physical injury to persons or property.

Walter and Lebrian Holly both moved to transfer the charges against them to juvenile court, and a hearing was held pursuant to Ark. Code Ann. § 9-27-318 (Repl. 1993). At the hearing, Walter’s mother and a friend of the family testified positively about Walter’s shy and nonviolent character and his potential for rehabilitation. An employee of New Futures for Little Rock Youth also testified about Walter’s voluntary participation in a youth violence prevention program sponsored by New Futures. Officer Ronnie Smith then summarized the State’s case.

The circuit court refused to transfer Holly’s case to juvenile court and ruled with respect to Walter as follows:

As to Mr. Walter, of course, I’m finding the same thing as to the seriousness of the offense and the violence involved. I would note that he had some past efforts made towards him in the area of violence prevention, and I’m riot sure that I really agree with either counsel as to how this should be applied based on the statute.... It seems from what I heard that the first acts done here were that of shooting the victims, and the two Defendants approaching them to take their goods after each of them knew that the shooting had occurred, after Mr. Walter knew that the shooting occurred. Then he went up to take the wallet, kind of not like he didn’t know the violence was going to be applied, because even if he didn’t know it was going to be applied, he sure took advantage of it after it was. So, that is more than just an accomplice as such. Witnesses stated that he was mature, that he was intelligent. There’s no question in my mind that this should not be transferred to juvenile.

Walter argues a reversal premised on the fact that the State’s evidence will prove only that he committed a serious act but not a violent one. In considering juvenile transfer cases such as the one before us, the circuit court must weigh these factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Ark. Code Ann. § 9-27-318(e) (Repl. 1993). In order to try a juvenile as an adult, the circuit court must make such a finding by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Repl. 1993).

We first note that the four charges against Walter clearly accuse him of perpetrating crimes involving a pistol and gunfire. The violence employed is obvious. Walter urges, however, that since he is not accused of personally using a weapon, he did not employ violence as the statute requires. The circuit court correctly concluded that his association with the gunman in committing the alleged robberies and thefts were enough to satisfy the criterion. This situation is distinguishable on its face from Blevins v. State, supra, where this court held that the absence of violence employed in the delivery of crack cocaine vitiated an adult charge against a juvenile.

Though there was countervailing evidence of Walter’s character and penchant for nonviolence, we have stated repeatedly that we are not required to give each factor under § 9-27-318(e) equal weight or force. See, e.g., Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).

Far from being clearly erroneous which is our standard of review (see Wicker v. State, supra; Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991)), the circuit court was eminently correct in finding clear and convincing evidence of why the transfer should not be made. Walter was charged with four counts of aggravated robbery and terroristic acts, all of which involve patently violent acts, and we have held that a charge itself may be a sufficient basis for denying a transfer. Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991), reh’g denied, 304 Ark. 402A, 805 S.W.2d 80 (1991). Bolstering the charges was the testimony of Officer Ronnie Smith, who outlined a clear robbery escapade where Walter acted in concert with a gunman who fired and wounded the two victims. Walter then took the wallet of one of the victims. We find no error under such circumstances.

Affirmed.


author: Cathleen V. Compton,

text:
    John I. PURTLE v. COMMITTEE ON PROFESSIONAL CONDUCT
    93-1018
    878 S.W.2d 714
    Supreme Court of Arkansas
    Opinion delivered June 6, 1994

      John I. Purtle, for appellant.

      Cearly Law Firm, by: Robert M. Cearly, Jr., for appellee.
   Cathleen V. Compton,

Special Chief Justice. In May of 1988, Susan Stafford was divorced from her husband, Steve Woodrow Stafford, by order of the Chancery Court of Pulaski County. There were two children born to the marriage, Christy and Mitchell. The decree of divorce granted custody of Christy and Mitchell to Susan Stafford, but with a special provision: she was not allowed to remove the children from the residence of her parents, Margie and Cletus Davis, without prior permission of the Court.

In January of 1991, Mr. and Mrs. Davis, who had intervened in their daughter’s divorce action, were granted custody of Christy and Mitchell. The order of January 31, 1991, was entitled “Order of Temporary Custody & Granting Intervention.” The order stated among other things that “[T]he prior Decree of this Court granting custody of the children to the Plaintiff is hereby modified and sole custody of Christy and Mitchell Stafford is given to Cletus and Margie Davis pending further Order of the Court.” (Emphasis ours.)

On February 12, 1991, this order was reaffirmed. A hearing was set for April 1991, but never occurred.

In August of 1991, following their reconciliation, Susan and Steve Stafford hired the appellant, John Purtle, to represent them in an effort to regain custody of their children. A review hearing was already set for December 12, 1991. Although no hearing occurred, an order was entered on December 13, 1991.

The appellant had advised the Staffords to obtain suitable housing and employment prior to custody hearings. In December of 1991, they had failed to attain those goals. When Robert Newcomb, counsel for Susan Stafford’s parents, requested a continuance of the December 12, 1991 hearing due to Margie Davis’s health, the appellant, after consultation with his clients, agreed to the continuance. An order drafted by Mr. Newcomb was entered on December 13, 1991. That order stated that “[B]y agreement of the parties the Intervenors are awarded custody of Christy Stafford and Mitchell Stafford until further order of this Court C (Emphasis ours.) It is the wording and effect of that order which lead to this appeal.

Susan Stafford filed an affidavit on December 21, 1992, in which she alleged that John Purtle had violated Model Rule of Professional Conduct 1.2(a) in that he had failed to consult with her as to the means by which the objectives of the representation were to be pursued, and that he had engaged in conduct prejudicial to the administration of justice, all based on the language of the order entered on December 13, 1991.

Following a hearing before the Supreme Court of Arkansas Committee on Professional Conduct on May 15, 1993, a Letter of Reprimand was issued to John Purtle by the Committee. It is from that Letter of Reprimand that John Purtle appealed. The decision of the Committee is reversed, and the complaint is dismissed.

We hear appeals from the Committee’s decisions de novo.

The issue on appeal is whether the decision of the Committee was supported by substantial evidence. We hold that it was not.

The confirmation letter sent to John Purtle by the Committee states that Purtle violated Rule 1.2(a) of the Model Rules of Professional Conduct, and further states as follows:

This Rule states, in part, that a lawyer shall consult with the client as to the means by which the objectives of the representation are to be pursued.

It is uncontroverted that the objective of the representation was to regain custody of the Staffords’ children. Both Ms. Stafford and Mr. Purtle testified that Mr. Purtle had told the Staffords that they needed to obtain suitable housing and employment before this objective could be satisfied. The Staffords were, at the time they hired Mr. Purtle, living in a three bedroom house with about a dozen other people, and neither of them was gainfully employed. By December of 1991, the Staffords had either gotten a mobile home but had no beds for their children, or were living with Mr. Stafford’s parents. The record is not altogether clear.

The Staffords were consulted about the continuance of the December 12, 1991 hearing, and were agreeable to the continuance. However, some weeks following the discussion of the continuance, they went to the courthouse and looked at their file. Upon seeing the order of December 13, 1991, they took.it to another attorney, Gene Fitzhugh, who advised them, according to Ms. Stafford, that the order granted full custody of Christy and Mitchell to her parents, and that it was, in some form, a final order. The Staffords then took the position that Mr. Purtle had “sold them out.”

Margie Davis, the mother of Susan Stafford, testified at the Committee hearing. Her testimony is critical. She told the Committee that the order of December 13, 1991, was, in her opinion, an order of continuance. She also noted that her attorney had always told her that “. . . nothing is final, ever . . . until they’re eighteen years old ...” In her mind, the order of December 13, 1991, changed nothing. She believed that the situation that had existed clearly since January 1, 1991, and arguably since May 5, 1988, was going to be continued.

Robert Newcomb, the Davises’ attorney, also considered that the December 13, 1991 order simply continued the status quo. The only change brought about by the December 13, 1991 order was a potential increase in visitation to the Staffords.

Susan Stafford was asked by Mr. Virden of the Committee the following question: “If after that word, ‘awarded,’ if that had said ‘temporary,’ would you have had any problem?” Her answer was, “No, sir.”

The appellant was reprimanded by the Committee on account of semantics, and nothing more. In its decision, the Committee elevated form over substance. The Rules of this Court regulating Professional Conduct of Attorneys at Law set forth the Purpose of the Rules, and further set forth the authority and powers of the Committee. At no point in the Rules is it stated that the Committee shall substitute its views for that of the attorney being investigated. Had Mr. Purtle allowed his clients to proceed to hearing on the merits of their case on December 12, 1991, they might well have had a legitimate complaint against him because their case was so weak. The continuance was clearly in their best interests, and in furtherance of the objective of the representation.

The record is important to establish a context for this decision. Mr. and Ms. Stafford hired Mr. Purtle to obtain custody of their two minor children. From May of 1988, they had basically abandoned their children to Mr. and Mrs. Davis. Following entry of the divorce decree, it is unclear what happened to Mr. Stafford. Ms. Stafford became involved with a man in Texas (while her parents cared for her children). She married a man (while her parents cared for her children), and she divorced him (while her parents cared for her children). She ultimately reconciled with Mr. Stafford, which led to her parents obtaining an order of intervention and custody. Each order, whether ex parte or otherwise, granted custody of Christy and Mitchell to Mr. and Mrs. Davis. These orders, other than the one dated December 13, 1991, had been entered by other attorneys before Mr. Purtle’s services were engaged. Nothing has changed from January 31, 1991 to the present. As of the date of the hearing before the Committee on May 15, 1993, although new counsel had been retained by the Staffords, and the case reopened, Christy and Mitchell continued to reside with and be in custody of their grandparents. There has been no damage nor any harm done to Mr. and Ms. Stafford by any action of Mr. Purtle. In another context, the action of Mr. Purtle would be referred to as “harmless error.”

There is, in effect, no “final order” in a custody case, until the children have reached their majority. Custody is determined by what is in the best interests of the children, and is not altered absent a material change in circumstances. Ark. Code Ann. § 9-13-101 (1987); Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). In essence, all orders of custody are “temporary,” by their very nature. The unyielding consideration in child custody matters is the welfare of the children. Stephenson v. Stephenson, 237 Ark. 724, 375 S.W.2d 659 (1964).

The record' on appeal is woefully inadequate, and is silent as to why Mr. and Mrs. Davis originally obtained custody. However, the law is that it is the natural parent who is the preferred custodial parent. Shuh v. Roberson, 302 Ark. 305, 788 S.W.2d 740 (1990). Custody is generally not granted to someone other than the natural parent or parents absent a finding of lack of fitness of the natural parent. Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973). It may be inferred from the orders of January and February of 1991, that the Chancellor found that Mr. and Ms. Stafford were unfit to raise their children, and that it was in Christy’s and Mitchell’s best interests to live with their grandparents.

Mr. Purtle’s job was to advise and counsel with the Staffords as to how to obtain their goal of regaining custody of their children. He so advised, and his advice, for all practical purposes went unheeded.

The decision of the Committee must be reversed, and the complaint of Ms. Stafford must be dismissed.

Reversed and dismissed.

Corbin and Brown, JJ., and Ted Drake, Kaneaster Hodges and Ike Allen Laws, Special Justices, join.

Darrell Brown, Special Justice, not participating in the final vote and the opinion.

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

       Parenthetically, we note that a hearing before the Committee is an adversarial proceeding which can substantially affect the rights of the respondent attorney. Attorneys responding to a complaint brought before the Committee should give serious consideration to representation by counsel.


author: Per Curiam. Robert L. Brown, Justice,

text:
    Larry Dale BAXTER v. STATE of Arkansas
    CR 93-1098
    878 S.W.2d 377
    Supreme Court of Arkansas
    Opinion delivered June 6, 1994

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

Appellant’s motion to accept belated return of writ is denied.

Robert L. Brown, Justice,

dissenting. Appellant Larry Dale Baxter was five days late in filing his supplemental record. That record was prepared to support his constitutional point that a disparity exists in the disposition of drug offenses. We granted him leave to file the supplement.

The majority denies the motion which is in reality a motion for rule on the clerk to file a late transcript because the appellant missed the deadline. We routinely, however, grant these motions to file late transcripts in criminal cases when an attorney admits fault, and we notify the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The reason for doing this is that otherwise the appellant will be in a position to obtain a belated appeal due to ineffective counsel. Id. I see no reason to deviate from that practice in this case merely because a supplemental record is involved. The motion should be granted in accordance with our 1979 per curiam.


author: Per Curiam.

text:
    Billy Joe CAMPBELL v. STATE of Arkansas
    CR 94-514
    877 S.W.2d 912
    Supreme Court of Arkansas
    Opinion delivered June 6, 1994

      John Clinton Goodson, for appellant.
    No response.
   Per Curiam.

We treat this motion for rule on the clerk as a-motion for a belated appeal. Appellant filed his notice of appeal on January 21, 1994, whereas the judgment was not entered until February 3, 1994. Under our rules the notice of appeal was of no effect. Ark. R. App. P. 4; Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 249 (1991).

We grant the motion for a belated appeal and direct that a copy of this opinion be forwarded to the Committee on Professional Conduct.


text:
    Connie M. COMBS v. STATE of Arkansas
    CR 94-528
    878 S.W.2d 378
    Supreme Court of Arkansas
    Opinion delivered June 6, 1994

      Marquis E. Jones, for appellant.
   Per Curiam.

Appellant, Connie M. Combs, by her attorney, has filed for a rule on the clerk.

Her attorney, Marquis E. Jones, admits that the failure to file the record in time was due to a mistake on his part.

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


text:
    Ronnie REED v. STATE of Arkansas
    CR 94-375
    878 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered June 6, 1994

      Appellant, pro se.
    No response.
   Per Curiam.

In 1991 appellant Ronnie Reed was found guilty by a jury of delivery of a controlled substance and sentenced to 100 years imprisonment. We affirmed. Reed v. State, 312 Ark. 82, 847 S.W.2d 34 (1993). Appellant subsequently filed in the trial court a pro se petition pursuant to Criminal Procedure Rule 37. An order was entered denying the petition. An appeal of the order was not perfected.

In September and November 1993, appellant filed pro se petitions to correct the sentence imposed pursuant to Ark. Code Ann. § 16-90-111 (Supp. 1991). The petitions were denied, and the record has been lodged in this court on appeal. Appellant now seeks access to the transcript.

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

The petitions to correct sentence were untimely. Criminal Procedure Rule 37.2 (b) provides in pertinent part that all grounds for post-conviction relief, including claims that a sentence is illegal or illegally imposed, must be raised in a petition under Rule 37. Statutes are given deference only to the extent that they are compatible with our rules, and conflicts which compromise these rules are resolved with our rules remaining supreme. Hickson v. State, 316 Ark. 783, 875 S.W.2d 492 (1994).

Arkansas Code Annotated § 16-90-111 (Supp. 1991) which permits the trial court to correct a sentence imposed in an illegal manner within 120 days after receipt of the affirming mandate of the appellate court and which permits an illegal sentence to be corrected at any time is in conflict with Criminal Procedure Rule 37. Criminal Procedure Rule 37.2 (c) provides that a petition under the rule is untimely if not filed within sixty days of issuance of the appellate court’s mandate affirming the judgment of conviction. The time limitations imposed in Rule 37 are jurisdictional in nature, and the circuit court may not grant relief on a untimely petition. Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). As appellant did not file his petitions to correct the sentence imposed on him within the time limit set by Rule 37, the petitions were untimely and he was not entitled to relief in circuit court.

Motion denied and appeal dismissed.


author: Jack Holt, Jr., Chief Justice.

text:
    Albert BELL v. STATE of Arkansas
    94-123
    877 S.W.2d 579
    Supreme Court of Arkansas
    Opinion delivered June 13, 1994

      Green & Henry, by: J.W. Green, for appellant.

      Winston Bryant, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This interlocutory appeal arises from the Arkansas County Circuit Court’s denial of appellant Albert Bell’s motion to transfer capital felony murder charges against him to juvenile court. Bell was sixteen years old at the time of the offenses. The sole issue on appeal is whether the trial court’s denial of his motion was erroneous. We hold that it was not and affirm.

According to statements given to the police, Bell and Terry Sims went to Cloud’s Grocery Store in Casscoe, Arkansas, and Sims returned a movie while Bell asked employee Julian Russell if he had any fuses. While Mr. Russell was looking for fuses, Sims shot him approximately five times. Another employee, Ms. Mary Lou Jones, began screaming, and after Bell got the money from the register, Sims shot Ms. Jones twice. Bell and Sims went to Sims’ car and drove to a friend’s house.

An information was filed with the Arkansas County Circuit Court charging Bell with the capital murders of Mr. Russell and Ms. Jones. Thereafter, Bell, by his court-appointed attorney, filed a motion with the circuit court to transfer his case to juvenile court. The trial judge held a hearing and denied relief, explaining that he had reached this conclusion after applying the criteria set forth in Ark. Code Ann. § 9-27-318 to the facts of Bell’s situation.

Bell contends that the circuit court erred asserting that the criteria provided in Ark. Code Ann. § 9-27-318 (Repl. 1993) had not been met, especially in light of the fact that there is no evidence that he participated in a violent act. However, Bell’s contention is not supported by the law or evidence presented at the hearing. Juvenile transfer matters are governed in part by Arkansas Code Annotated § 9-27-318(e-f), which enumerates these factors:

(e) (1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s
prospects for rehabilitation.
(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

In deciding whether to transfer a case from circuit to juvenile court, the trial court is not required to give every factor equal weight, and proof on every factor need not be introduced in order to warrant keeping a case in circuit court. Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). If a court decides that a juvenile should be tried as an adult, its decision must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(f) (Repl. 1993). Our standard of review in juvenile transfer cases is whether the circuit court’s denial of the motion to transfer was clearly erroneous. Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991).

Bell testified and called three witnesses in his behalf. Bell affirmed his age and his attendance at high school. Dr. Monneypenny, a psychologist, stated that despite Bell’s previous involvement in livestock theft, he thought that “in comparison with most of the offenders I have evaluated . . . this does not constitute what I would consider a repetitive pattern [of criminal behavior] by any means.” He opined that Bell “qualified for rehabilitation.”

John McCord, an investigator with the Arkansas State Police, testified for the defense as a hostile witness. He investigated the double homicide at Cloud’s Grocery and stated that the two victims died of gunshot wounds. He acknowledged that the evidence did not show that Bell had discharged a weapon in the deaths; however, he noted that his information suggested that Bell had acted as a decoy to lure one of the victims away from the cash register during the course of the robbery. McCord’s review of evidence connecting Bell to the double homicide, included that: (1) Bell told investigators where to retrieve the murder weapon; (2) Bell pulled money out of the register at Cloud’s; and (3) Sims’ statement implicating Bell in the crime. Further, according to McCord, Bell’s credibility was diminished by his statements to the police regarding his participation which proved to be false.

The defense also called Arkansas County Sheriff Wayne Simpson, who testified that Bell had not caused any disciplinary problems while incarcerated at the Arkansas County Jail.

In partial response, the State submitted an evaluation of Bell from Arkansas Division of Mental Health Services which provided that at the time of the offense, Bell did not lack the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law and that Bell had the capacity to have the culpable mental state to commit the offenses charged.

Bell’s main contention is that the circuit court erred because the State failed to show any violent act by him. While it is true that there was no proof that he pulled the trigger, this does not alter the fact that he is charged as an accomplice for his involvement in these murders. An accomplice, even of minor age, is responsible for the activities of his cohort. See Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).

Further, we have held that the serious and violent nature of the offense is itself a sufficient reason to deny a motion to transfer. Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993). A criminal information is sufficient to establish that the offense charged is of a serious and violent nature. Tucker, supra; Vickers, supra. Here, the information supports the violent nature of the crimes in which Bell is accused of participating, for it provides:

The said defendant on or about the 15th day December, did then and there, unlawfully,
Acting alone or with one or more persons, he commits or attempts to commit Robbery and in the course of and in furtherance of the felony, he or an accomplice caused the death of [Julian Russell and Mary Lou Jones] under circumstances manifesting extreme indifference to the value of human life. . . .

On the basis of the evidence presented at the hearing, we cannot say that the trial court erroneously denied Bell’s motion to transfer.

As previously mentioned, the trial judge made the general statement that he reached his decision after applying the criteria set forth in Ark. Code Ann. § 9-27-318 to the facts of Bell’s case. We note that even though the trial judge was not required to make specific findings of fact when reaching his decision, to have done so would have been most helpful to this court in determining whether or not his decision was clearly erroneous. See Beck, supra.

Affirmed.


author: Steele Hays, Justice.

text:
    Daniel Lee KING v. STATE of Arkansas
    CR 93-1171
    877 S.W.2d 583
    Supreme Court of Arkansas
    Opinion delivered June 13, 1994
    [Rehearing denied July 18, 1994.]

      Larry Dean Kissee, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Daniel Lee King, appellant, was convicted of four counts of rape based on sexual relations he had with his thirteen-year-old stepdaughter. King raises five points for appeal but none is persuasive.

On January 27, 1993, King met voluntarily with a caseworker for the Arkansas Department of Human Services to discuss allegations that he had sexually abused his thirteen-year-old stepdaughter. He admitted to having relations with the stepdaughter and the case-worker referred the matter to the Izard County authorities. King was interrogated by the Izard County Sheriff’s Department and he again admitted to a sexual relationship with the victim in a tape recorded interview. The next day King was arrested on one count of rape.

King, was arraigned and trial was set for April 12, 1993. The issue of mental disease or defect was raised and the trial court ordered a mental evaluation by a local psychologist. On April 7, 1993, an amended information was filed charging King with three additional counts of rape. Shortly thereafter the trial court determined King was fit to proceed. At trial King was found guilty on all four counts of rape and sentenced to twenty-five years on each count, consecutively. King appeals from that conviction.

Motion For Mistrial

King first argues the trial court erred in failing to grant a mistrial for the following remarks made by the prosecutor in closing argument:

This is the type of message that you can send out here to these folks who might even have the slightest idea that they wanted to go in there and molest their little stepdaughter or the little girl next door, your grandbaby, your daughter, or whoever it might be. [Our emphasis.]

The defense objected on the basis that the “golden rule” prohibited the prosecutor from referring to “your grandbaby or your children.” The trial court sustained the objection and while it refused the defense’s request for a mistrial, it did admonish the jury:

Okay, the objection would be sustained and the jury would be admonished not to place themselves in the position of the victim.

The prosecutor resumed his summation and said:

Ladies and gentlemen, I’m not asking you to place yourself, that’s not the point to what I’m saying. You know what I’m saying, and I respectfully ask you to return a verdict of guilty on each count and to assess an appropriate sentence to follow that verdict.

On appeal King argues it was error for the trial court not to order a mistrial.

A mistrial is a drastic remedy to which the court should resort only when there has been an error so prejudicial that justice cannot be served by continuing the trial. Clark v. State, 315 Ark. 602, 870 S.W.2d 372 (1994). It should only be ordered when the fundamental fairness of the trial itself has been manifestly affected. Furlough v. State, 314 Ark. 136, 861 S.W.2d 297 (1993). The trial court has wide discretion in granting or denying a motion for a mistrial and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the complaining party. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). An admonition to the jury usually cures a prejudicial statement unless it is so patently inflammatory that justice could not be served by continuing the trial. Foster v. State, 294 Ark. 146, 741 S.W.2d 251 (1987); Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988); Ronning v. State, 295 Ark. 228, 748 S.W.2d 633 (1988).

The “golden rule” argument suggests to jurors that they place themselves in the position of a party or victim. See Smith v. Petit, 300 Ark. 245, 778 S.W.2d 616 (1989). The golden rule argument is impermissible because it tends to subvert the objectivity of the jury. Mueller v. Sigmond, 486 N.W.2d 841 (MN. 1992). It is seen as an attempt to dissuade the jurors from their duty to weigh the evidence and instead to view the case from the standpoint of a litigant or party. Metropolitan Life Ins. Co. v. Moss, 109 S.W.2d 1035 (TX. 1937). The rule is applied to criminal cases as well as civil cases. See Lycans v. Com. of Ky, 562 S.W.2d 303 (1978).

King points to an earlier case where we held the golden rule warranted a mistrial. Adams v. State, 229 Ark. 777, 318 S.W.2d 599 (1958). In that case the prosecutor stated in closing argument on a rape charge:

Now gentlemen, if you turn this man loose, go home and tell your daughters that you made it really hard for them today because you turned a man loose that can run over them and take anything from them he wants to, and then come up here and tell a cock and bull story and get away with it.

In response to an objection, the trial court told the jury;

As I have told the jury before, you are not to consider the case on the arguments of counsels but on the law and the evidence introduced.

The prosecutor had also made remarks in his opening statement which were in the nature of testifying to the jury. We held the remarks required reversal:

The appeal to the jury to put themselves in plaintiff’s place was improper. One doing that would be no fairer judge of the case than would plaintiff herself. . . . Here the mild rebuke of the court was not sufficient to remove from the minds of the jury, the damage done.

We believe Adams is distinguishable. In Adams there was only a general admonition to the jury, whereas here, the trial court addressed the specific nature of the objection, i.e., that the jury was not to put itself in the position of the victim. In addition, the prosecutor himself addressed the jury and withdrew the objectionable comment and the trial court gave the added standard instruction that remarks made during arguments by the attorneys were not evidence and should be disregarded. We also note that in Adams the prosecutor had made other comments at an earlier point in the trial which this court also found improper. We find no abuse of discretion in the trial court’s denial of a mistrial on the basis of the prosecutor’s remark.

Defense Of Mental Disease Or Defect

Appellant contends the trial court failed to substantially comply with Ark. Code Ann. § 5-2-305 (1987), which outlines the procedures to be followed when the defense of mental disease or defect is raised. He argues that while a psychologist was appointed to evaluate his mental condition, Section (b)(1)(A) requires an evaluation by a psychiatrist. That section reads:

(b)(1) Upon suspension of further proceedings in the prosecution, the court shall enter an order:
(A) Directing that the defendant undergo examination and observation by one or more psychiatrists at a local regional mental health center. A licensed psychologist at a mental health center who has successfully completed a forensic certification course approved by the Department of Human Services may also be directed to conduct an examination on mental condition.

The trial court ordered Dr. Sam Boyd, a certified forensic psychologist with the Psychological Clinic in Conway, Arkansas, to interview and evaluate appellant. Appellant argues that under Section (b)(1)(A) an examination by a psychiatrist is required because the statute is not in the disjunctive and does not offer an alternative between a psychiatrist and a psychologist.

We find no objection below on this point. We do find the following:

BY THE COURT: The Court will now proceed with the case of State of Arkansas v. Daniel Lee King, CR 93-6. The first matter is to take up the report that has been received from Dr. Sam Boyd, who has evaluated Mr. King pursuant to the order for evaluation as entered by this Court.
BY MR. HIVELY: Judge, we would move, I think it has been filed, make it a part of the record, if it has not been filed would ask that it be filed, and we stand on the report from Dr. Boyd.
BY THE COURT: Okay, does the defense have any report to present regarding this issue of competency?
BY MR. GARNER: No, Sir, Judge, not on Dr. Boyd. We have the same objection that I made at the time the appointment was made, but as to Dr. Boyd’s report, as it stands, I don’t have any proof to offer on the report.

However, no earlier objection appears in the record. In Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991), we held the appointment of a psychiatrist was not required under § 5-2-305. We noted that under Ball v. State, 278 Ark. 423, 646 S.W.2d 693 (1983), substantial compliance with this statute was sufficient and that an evaluation by a psychologist was enough.

Appellant also maintains his evaluation under the statute was not in compliance with Ake v. Oklahoma, 470 U.S. 68 (1985), because he was denied a request for an independent psychological examination. We do not equate the argument with that made in Starr v. A.L. Lockhart, No. 92-1466 (8th Cir. 1994). In Starr the defendant, who was appealing from a death sentence, was mentally retarded, requested assistance under Ake to “assist in evaluation, preparation and presentation of the defense.” The court found that under Ake the defendant should receive the help of the expert to function as a “basic tool” in defending his case. Here, appellant filed a motion for the appointment of a psychiatrist to assist in his defense but offered no evidence in support thereof. Thus Dr. Boyd’s report was the only evidence before the Court relevant to appellant’s competency. Appellant also moved for an additional examination. We have held numerous times that an evaluation as was done here does not require a second opinion. Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989); See v. State, 296 Ark. 498, 757 S.W.2d 947 (1988). Appellant has referred to no facts nor made any argument that would distinguish this case from those such as Branscomb and See.

Appellant urges that under § 5-2-305(a)(2) the trial court is obliged to suspend further proceedings when fitness to proceed has been put into question. The point was not raised below and is waived on appeal.

Motion For A Continuance

Appellant contends the trial court erred in denying his motion for continuance on the morning of trial. Appellant claims his mental evaluation was not filed until the day of trial and that his attorney’s first appearance with him was only twelve days before trial. These contentions are not supported by the record. Counsel first consulted with appellant on March 1 and the mental evaluation was given to counsel on April 9. Moreover, at an in-chambers hearing on the motion for continuance, counsel made no argument that he needed more time to respond to the mental evaluation, or to obtain evidence, he simply asked the defendant whether he felt a continuance was needed:

Q: Now, Daniel, I’ve been over and visited with you on, I don’t remember exactly how many occasions, four or five occasions, I guess, and we have talked about your case and you expressed to me last week, I believe at least on one or two occasions, that you felt like that we needed a continuance in this case in order to make further preparation, is that right?
A: I do. I feel that what few times you’ve been here, that you have only been able to visit with me maybe 15, 20 minutes, 30 minutes at the most. I know, of course, that you’ve got several other cases to deal with. I feel that we hadn’t had proper time for me to be able to defend myself.
Q: Okay. And that’s basically the reason that you feel like we need a continuance, for more time to prepare so that you and I can have more time to work together and you can tell me other additional factors perhaps about the case?
A: Yes.
BY MR. GARNER: Okay. Judge, that’s all I have on that.

Appellant acknowledges the broad discretion of the trial court over requests for continuances, but compares this case to Gonzales v. State, 303 Ark. 537, 798 Ark. 101 (1990), where we held the trial court had abused its discretion in denying a continuance. We disagree. The burden is on the movant to show good cause for a continuance. Oliver v. State, 312 Ark. 466, 851 S.W.2d 415 (1993); See also Ark. R. Civ. P. 27.3. The motion is addressed to the sound discretion of the trial judge and will not be reversed absent an abuse of that discretion. King v. State, 314 Ark. 205, 205 S.W.2d 229 (1993). Appellant must demonstrate resulting prejudice and no prejudice is presumed in this context. Id.

Appellant’s attorney was appointed around mid-February 1993. He first met with appellant on March 1, 1993. He was aware at that time the trial was set for April 12, 1993. The attorney received the forensic mental evaluation on Friday, April 9, 1993. At the end of the hearing the trial court found the attorney had forty-five to sixty days to prepare, and that calculation is supported by the record.

In Gonzales, the public defender was notified only one day before trial he was going to defend his client. It was on that basis we reversed the trial court’s denial of a motion for a continuance. There is little similarity between the one day preparation time in Gonzales and the forty-five to sixty day period in this case. Appellant has not demonstrated how trial preparation was impaired. See Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994).

Appellant’s contention that it was error to deny a request for a continuance while permitting the information to be amended five days before trial by adding three additional counts of rape was not made below and is waived on appeal.

Taped Confession

As his fourth point of error appellant argues the trial court erred in allowing his taped confession to be played and that the confession itself should have been suppressed. At the pretrial hearing appellant first became aware the prosecution intended to play the taped confession for the jury. The trial court ruled at that time so appellant would have an opportunity before trial to compare the tape and the transcription. After hearing the tape, appellant agreed there were no substantive inconsistencies and acknowledged the statement itself was not a surprise. He argued to the trial court only that he did not know the tape would be played to the jury. Appellant has cited no authority for this assignment of error nor demonstrated how the use of the tape under these circumstances resulted in any prejudice.

Appellant also claims his statement to the police was the result of a promise or reward because he was under the impression that he would be given psychiatric help. He does not assert the police promised him such help, rather the promise had been made by the social worker he first talked to and the police “did nothing to dispel his belief that help was forthcoming.”

We know of no authority, nor has appellant cited any, suggesting the existence of such a duty on the part of police. Furthermore, we note it is a false promise that renders a confession involuntary, Tippett v. State 285 Ark. 294, 686 S.W.2d 420 (1985), and here appellant has readily conceded the case-worker arranged for psychological treatment. We find no error.

Victim’s Competence To Testify

As his last point appellant argues the trial court erred in finding the victim competent to testify. Prior to trial he moved for a determination of the competency of the thirteen-year-old victim, who was scheduled to testify. A hearing was conducted, the victim was questioned by the trial court and defense counsel, and the trial court found her competent to testify.

The question of the competency of a witness is a matter lying within the sound discretion of the trial court and in the absence of clear abuse, we will not reverse on appeal. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). The trial court must begin with the presumption that every person is competent to be a witness. Id.\ A.R.E. Rule 601. The party alleging a witness is incompetent has the burden of persuasion. Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989). The issue of competency of a witness is one in which the trial judge’s evaluation is particularly important due to the opportunity he or she is afforded to observe the witness and the testimony. In a child rape case, the matter of the competency of the child is primarily for the trial judge to decide as he or she is better able than we are to judge the child’s intelligence and understanding of the necessity for telling the truth. Jackson v. State, supra.

The criteria for judging witness competency are: the ability to understand the obligation of an oath and to comprehend the constraint imposed by it; an understanding of the consequences of false swearing; and the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the fact finder a reasonable statement of what was seen, felt or heard. Chambers v. State, 275 Ark. 177, 628 S.W.2d 306 (1982).

Appellant argues the above test was not met in this case because the child admitted she did not understand the obligation of the oath or the consequences of not telling the truth, and additionally, could not remember all the details of the alleged crimes. These characterizations of the victim’s testimony are correct, so far as they go, but they have been taken out of context. Under questioning by the court the victim first stated she knew what it meant to take an oath and to tell the truth. She responded in the negative when asked if she knew what happened if she didn’t tell the truth when placed under oath. When the court clarified its question and asked if she knew what happened when she didn’t tell the truth to her mother, the witness replied she would be punished and it was “bad” not to tell the truth. She reiterated her understanding in the same way when asked that question by the defense. She was also certain she could remember and relate the events that took place with appellant, even though she might not recall all the details.

The trial judge concluded the victim was competent to testify and met all the witness criteria. He noted she was fairly intelligent, in the seventh grade and received A’s and B’s in class; he found she understood the necessity of being truthful in her testimony and that not telling the truth was wrong and was punishable; and that she had the ability “to transmit an accurate statement of what had happened to her.” Based on the foregoing, we cannot say the trial court abused its discretion in finding the witness competent.

Affirmed.

       At this writing, this case has not yel been designated for publication and is subject to rehearing.


text:
    Joy PUGH, et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al.
    93-1148
    877 S.W.2d 577
    Supreme Court of Arkansas
    Opinion delivered June 13, 1994

      Mathis & DeJanes, for appellant

      Dennis L. Shackleford, for appellee.
   Steele Hays, Justice.

This is an appeal from a summary judgment in a medical malpractice case. The trial court applied the decision in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), holding that the malpractice claim was time-barred. That holding is challenged on appeal and we affirm.

Joy Pugh, appellant, filed a medical malpractice suit in 1987 against Warner Brown Hospital and two doctors, James Weedman and Durwood Flournoy, all appellees. St. Paul Fire and Marine is the carrier for the hospital. The complaint alleged negligence in the treatment of Mrs. Pugh’s husband, resulting in his death. The negligent acts complained of occurred on May 26, 1985. On September 29, 1989, Mrs. Pugh took a voluntary nonsuit. On September 24, 1990, she served appellees with notice of intent to sue, a prerequisite for a medical malpractice action under Ark. Code Ann. § 16-114-204 (1987). On November 24, 1990, she refiled the complaint. Appellees moved for summary judgment on December 19, 1990, alleging her action was barred by the statute of limitations. The motion was denied.

On February 25, 1993, appellees filed a motion for reconsideration of summary judgment. The trial court granted the motion, applying a recent case, Weidrick v. Arnold, supra, retroactively, and finding the action was time-barred. Mrs. Pugh urges this was error.

Appellant recognizes the two-year limitation provided in § 16-114-203 for medical malpractice claims, but contends because she took a nonsuit, she comes within the savings statute, Ark. Code Ann. § 16-56-126 (1987), which gives her a year to refile from the time of her nonsuit. Appellant’s suit, however, was not refiled within a year, but more than two months after the one-year extension had run. Appellant insists that fact does not defeat her claim because the ninety-day (formerly seventy-day) extension provided under § 16-114-204(b) was applicable to the savings statute and gave her the additional time needed to file her complaint.

In Weidrick, supra, this court held the requirement for notice of intent to sue in § 16-114-204(a) was superseded by ARCP 3. That opinion did not specifically deal with section (b), which provided the ninety-day extension. The trial court ruled, however, that Weidrick was intended to supersede section (b), and that it was to apply retroactively. Thus under the trial court’s holding appellant was denied the extended time allowed under § 16-114-204(b).

Whether Weidrick should have been applied retroactively has been addressed in the briefs and oral argument. However, it is unnecessary to reach that issue as we hold the extension provided in § 16-114-204 was not intended to apply to the savings statute. Without that extension, regardless of the application of Weidrick, appellant’s claim is barred as it was not refiled within one year as required by § 16-56-126.

§ 16-114-204(b) provides:
If the notice is served within sixty (60) days of the expiration of the period for bringing suit described in § 16-114-203 [two years] the time for commencement of the action shall be extended ninety (90) days from the service of the notice.
§ 16-56-126 provides:
If any action is commenced within the time respectively prescribed in this act, in § § 16-116-101 — 16-116-107, in § § 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit. . . the plaintiff may commence a new action within one (1) year after the nonsuit suffered. . . .

Under the wording of § 16-114-204(b), the ninety-day extension period applies to only the two-year limitation in § 16-114-203. The savings statute is not mentioned. Similarly, the savings statute makes reference to the medical malpractice act but expressly states a one-year limitation and does not mention the ninety-day extension.

The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the General Assembly. Roy v. Farms & Merchants Ins. Co., 307 Ark. 213, 819 S.W.2d 2 (1991). When a statute is clear, it is given its plain meaning and we do not search for legislative intent. That intent must be gathered from the plain meaning of the language used. Hinchey v. Thomasson 292 Ark. 1, 727 S.W.2d 836 (1987). Here the plain language of § 16-56-126 does not include the addition of the ninety-day extension provided for in § 16-114-204. Appellant’s claim was therefore not timely refiled.

Appellant raises another point. Prior to the order granting summary judgment, appellant engaged in pretrial discovery. After summary judgment was entered on June 25, 1993, she filed a motion under ARCP 60(b) on July 13, 1993, questioning some developments involving discovery: the reasonableness of certain expert fees, the failure of two experts to refund their fees when they were not deposed, and the propriety of the trial court’s denial of subpoenas for some of the experts. The trial court denied the motion and appellant argues that was error.

We affirm the trial court’s denial of the motion because appellant was precluded from bringing a Rule 60(b) motion on the grounds requested. Appellant’s motion should have been made under ARCP 52(b), for an amendment to the trial court’s findings. That motion, however, must be made within ten days of entry of judgment and in this case the motion was not timely.

Rule 60(b) allows a motion within ninety (90) days of the judgment but that rule limits the grounds for bringing the motion. Phillips v. Jacobs, 305 Ark. 365, 807 S.W.2d 923 (1991); Jackson v. Arkansas Power & Light, 309 Ark. 572, 832 S.W.2d

224 (1992). We have interpreted Rule 60(b) narrowly and said most recently in Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993):

In interpreting the language in ARCP 60(b) we have said that the “miscarriages of justice” referred to in the rule are a reference to those clerical errors or mistakes described in Rule 60(a). Phillips v. Jacobs, 305 Ark 365, 807 S.W.2d 923 (1991).

The appellants in Ingrám made a motion under Rule 60(b) claiming the trial court had erred in refusing to admit certain evidence at a motion to vacate. Rule 60(a) provides for setting aside a judgment due to “clerical mistakes in judgments . . . arising from oversight or omission. . . .” We found in Ingram that “such a clerical mistake was not demonstrated” and affirmed the chancellor’s refusal to admit the evidence.

Here too appellant has failed to demonstrate that a clerical mistake of the type referred to in Rule 60(a) was made and the motion should not have been heard. While the trial court did hear the motion, it nevertheless denied it so the right result was reached even if not on the grounds we assert here. Miller v. Nix, 315 Ark. 569 (1994).

Affirmed.

       Wc have since dealt with that question and in Thomas v. Cornell, 316 Ark. 366 (1994) we held that both sections (a) and (b) of § 16-114-204 were superseded by ARCP 3.


author: David Newbern, Justice.

text:
    Thomas Craig KELLER v. SAFECO INSURANCE COMPANY of America
    93-1301
    877 S.W.2d 90
    Supreme Court of Arkansas
    Opinion delivered June 13, 1994
    [Rehearing denied July 11, 1994.]

      Snellgrove, Laser, Langley, Lovett & Culpepper, by: Todd Williams, for appellant.

      Butler, Hickey & Long, by: Fletcher Long, Jr., for appellee.
   David Newbern, Justice.

Thomas Craig Keller, the appellant, is the owner of an airplane insured by the appellee, Safeco Insurance Company of America (Safeco). The insurance policy has two “deductible” provisions. One of them, 10% of the amount of insurance, is to be applied to an injury to the airplane which occurs when the airplane is “in motion.” The airplane is insured for $140,000, so the deductible under that provision is $14,000. The other, a flat $1,000 deductible, is to be applied when injury occurs when the airplane is “not in motion.”

An accident occurred, and Safeco declined to pay for the injury to the airplane on the ground that it was moving and. the damage amount, $9,650, was less than the $14,000 deductible. Mr. Keller claimed the lesser deductible applied and sued Safeco for the cost of repair less $1,000. The Trial Court granted Safeco’s motion for summary judgment. The Court of Appeals affirmed by a tie vote. Keller v. Safeco Ins. Co. of America, 44 Ark. App. 23, 866 S.W.2d 419 (1993). We reverse and remand the case. Summary judgment was inappropriate because there was a genuine issue of material fact remaining to be decided. Ark. R. Civ. R 56(c). The policy was ambiguous in its definitions provisions which determine the issue, thus the question of the intent of the parties to the insurance agreement should have been tried as a question of fact.

Depositions presented with the motion for summary judgment and response showed that, on the day the accident occurred, Mr. Keller had been flying the plane and was taking a lunch break. He noticed a storm developing. He returned to the airplane and attempted to taxi to a tie-down area. Approximately five feet from the end of the tie-down chain all three wheels of the airplane sank in mud stopping the airplane. He revved the engine in an attempt to free the wheels but realized the attempt was fruitless and turned off the ignition.

About three seconds after he turned the key, a gust of wind lifted the tail of the airplane and smashed the nose of the plane into the gravel while the propeller was turning. Some witnesses described the turning of the propeller as the result of momentum remaining after the engine had been shut down. Mr. Keller said the propeller was “windmilling.”

The insurance contract has a definitions subsection entitled, “Motion — Not in Motion.” It provides, “The aircraft shall be deemed ‘in motion’ when moving under its own power, or momentum therefrom. The aircraft shall be deemed ‘not in motion’ under all other circumstances.”

“Aircraft” is defined in the policy as follows:

“Aircraft” means the airplane or rotorcraft described herein and shall include the engines, propellers, rotor blades, tools and repair equipment therein which are standard for the make of the type of the aircraft, and operating and navigation instruments and radio equipment usually attached to the aircraft, including parts temporarily detached and not replaced by other similar parts.

According to Safeco, as the propeller was in motion and is included in the definition of “aircraft,” the aircraft was in motion under the terms of the contract and the $14,000 deductible was correctly applied. To support its position, Safeco relies primarily on Ranger Ins. Co. v. Lamppa, 115 Ariz. App. 124, 563 P.2d 923 (1977). The Arizona Court of Appeals held that where an aircraft was damaged as a result of fire which occurred in one of the engines during a maintenance check, coverage was provided under the provision that governed loss which occurred while the aircraft was in motion or when the engine was running.

The insurance policy at issue in the Arizona case specifically referred to the operation of the engine when discussing its “in motion” coverage. .The policy which covered Mr. Keller’s aircraft did not have such a provision, and this Court will not read one into the contract.

The Arkansas Court of Appeals opinion in this case also mentioned in support of its decision a policy provision dealing with wind damage. That provision was not argued in the appeal, and the parties agree that it was not in effect because it was deleted by subsequent endorsement.

A cardinal rule of insurance law is that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer. See Cooper Tire and Rubber Company v. N.W. Nat’l Cas. Co., 268 Ark. 334, 595 S.W.2d 938 (1980). An ambiguity exists when a provision is susceptible to more than one reasonable interpretation. If there is doubt or uncertainty as to the policy’s meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Arkansas Farm Bureau Ins. Fed’n v. Ryman, 309 Ark. 283, 831 S.W.2d 133 (1992). If there is a reasonable construction that may be given to the contract that would justify recovery, it is the duty of the court to adopt it. Id.

A party moving for summary judgment must show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. R 56(c). See Green v. National Health Laboratories, Inc., 316 Ark. 5, 870 S.W.2d 707 (1994). All proof must be considered in the light most favorable to the non-moving party, and any doubts or inferences must be resolved against the moving party. On appeal, the court determines if summary judgment was proper based on whether the evidence presented by the movant leaves a material question of fact unanswered. Id.

The initial determination of the existence of an ambiguity in a contract rests with the trial court, and if an ambiguity exists, the meaning becomes a question of fact for the fact finder. See Minerva Enter. Inc. v. Bituminous Cas. Corp., 312 Ark. 128, 851 S.W.2d 403 (1993).

The contract provisions at issue are at least ambiguous. The provision which defines “aircraft” states that it is the “airplane described herein” and “shall include” the propeller, radio and other items, (emphasis added). The provision concerning “motion” refers to “The aircraft... moving under its own power, or momentum . . . .” and could easily be construed as referring to the aircraft as a whole rather than some included part of the aircraft.

As the dissenting opinion in the Court of Appeals pointed out, it would be reasonable to assume that the risk of extensive damage to an aircraft moving as a whole is greater than the risk incurred when only some part of the airplane is in motion, thus justifying the higher deductible in that circumstance; however, the contract does not say that. The intent of the parties must be addressed as a question of fact.

Reversed and remanded.