author: Ray Thornton, Justice. Tom Glaze, Justice,

text:
    Pamela WEBB v. Gayle FORD, Judge, Montgomery County Circuit Court
    CR 99-1026
    9 S.W.3d 504
    Supreme Court of Arkansas
    Opinion delivered February 3, 2000

      Darrel Blount, for petitioner.

      Mark Pryor, Att’y Gen., by: Sandy Moll, Ass’t Att’y Gen., for respondent.
   Ray Thornton, Justice.

Petitioner, Pamela Webb, seeks a writ of prohibition directed to the Montgomery County Circuit Court to prevent her trial on several drug-related charges. The circuit court denied petitioner’s motion to dismiss the charges on speedy-trial grounds, and she now presents this motion to this court pursuant to A.R.Cr.P. 28.1. Because Petitioner was not brought to trial within twelve months of her arrest, exclusive of periods of justifiable delay, we hold that the writ of prohibition will he and dismiss the charges against her.

Petitioner was arrested on April 3, 1998, by the Montgomery County Sheriff’s Office. Probable cause was found to support her arrest, and she was detained pending satisfaction of a $15,000.00 bond. She bonded out of jail and was arraigned on April 10, 1998, on charges of possession of marijuana with intent to deliver, possession of drug paraphernalia, and possession of methamphetamine. A pretrial hearing was set by the court for July 10, 1998, and then continued to September 4, 1998. The case was then reset for October 2, 1998, but it appears that no hearing was held at that time. No further action was taken on the matter until July 30, 1999, when the parties returned to court to address petitioner’s motion to dismiss for failure to comply with speedy-trial requirements.

Because petitioner established that 483 days had passed since her arrest, she presented a prima facie case of violation of her right to a speedy trial. Arkansas Rule of Criminal Procedure 28.1 (1999) requires that any defendant charged with an offense in circuit court and held to bail shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months of the date of the arrest. Id. Once a petitioner presents a prima facie case of violation of speedy-trial rules, the burden shifts to the State to show that the delay is the result of the petitioner’s conduct or otherwise legally justified. Jones v. State, 329 Ark. 603, 951 S.W.2d 308 (1997). See also Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998). Because the State did not meet its burden of establishing legally justified excludable periods of time in excess of 118 days, petitioner is entitled to have her charges dismissed.

The State contends that the periods of time from July 10 through October 2, 1998, should be excluded pursuant to Rule 28.3(d), as a continuance granted at the request of the defendant, based on its assertion that the requests for continuances made on July 10, 1998, and September 4, 1998, were made as joint motions by the prosecution and the defense. Neither the court’s docket sheet nor a written order reflects that the trial court made a finding as to whom the time would be charged, as required by Rule 28.3. Notwithstanding, even if we accept the State’s assertion that those eighty-four days should be excluded, this still leaves 399 days accumulated, well beyond the twelve-month limitation.

The State argued below that the filing of a Motion to Suppress in another case on June 16, 1998, further tolled the time. The motion in question was filed by another defendant, one James Gwin, who was also charged with certain drug-related offenses arising out of the execution of the same search warrant. Petitioner here did not file a motion to suppress nor did she join in Gwin’s motion; indeed, there was no showing below that the evidence sought to be suppressed was applicable to Webb’s charges. Contrary to the State’s assertion, while Rule 28.3(a) does provide that the “period of delay resulting from . . . hearings on pretrial motions...” are excluded in computing the time for trial, Arkansas speedy-trial rules do not contemplate that the filing of a suppression motion by one defendant should toll the time as to another defendant who is facing different charges filed in a distinct case. Just as an appellant cannot benefit from objections made on behalf of another defendant or personal exchanges between counsel for the other defendant and the court, Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992), petitioner here should not be charged with the consequences of the filing of a motion in another defendant’s case.

We cannot agree with the State’s assertion that the time for trying petitioner was suspended indefinitely pending resolution of a motion filed in another’s case and, therefore, hold that 399 days had elapsed since petitioner’s arrest, well beyond the limitations established by the speedy-trial rules. It is generally recognized that a defendant does not have to bring himself to trial and is not required to bang on the courthouse door in order to preserve his right to a speedy trial. The burden is on the courts and the prosecutors to see that trials are held in a timely fashion. Jones, supra. Under Rule 28.2, the speedy-trial period commences to run “without demand by the defendant.” Id. Accordingly, we hold that the charges against Petitioner must be dismissed, and that such dismissal constitutes an absolute bar to further prosecution for the same offenses.

Writ granted.

Glaze and Corbin, JJ., dissenting.

Tom Glaze, Justice,

dissenting. I dissent, and would deny Pamela Webb’s motion to dismiss her request for writ of prohibition on speedy-trial grounds. I do so for most of the same reasons set forth in our companion case of Gwin v. State, 340 Ark. 302, 9 S.W.3d 501 (2000), where this court denied Gwin’s identical request for dismissal.

Pamela Webb was James Gwin’s girlfriend. After law enforcement authorities searched Gwin’s house and found drugs and drug paraphernalia, they arrested both Gwin and Webb. Gwin and Webb retained the same counsel, Darrell Blount, to represent them at separate trials. Consolidated pretrial hearings were set where Blount appeared, representing both Gwin and Webb. As pointed out in our Gwin decision, the trial court looked to Blount and asked, “Mr. Blount, do you have the matter of Webb and Gwin...?” Blount responded, “Yes, Your Honor. There’s going to be a fairly lengthy pretrial.” At an earlier hearing, the prosecutor appeared with Blount where they announced, “There’s a joint motion to continue this matter for pretrial..., and we anticipate the pretrial hearing to be approximately four to five hours.”

In sum, the prosecutor and Mr. Blount made pretrial appearances where they had requested continuances, but failed to obtain sufficient time to resolve all preliminary motions. Both Webb and Gwin had filed identical discovery motions, and Webb, Gwin, and the prosecutor jointly sought additional time which proved to be inadequate to present and resolve their pretrial matters. Under Ark. R. Crim. P. 28.3 (1999), those periods of delay or continuance requests were excludable. As a consequence, after deducting the periods of continuance, both Webb’s and Gwin’s trials were set well within Arkansas’s speedy-trial time of twelve months.

Here, while Blount sought discovery motions for Webb and Gwin, seeking pretrial information for which continuances were obtained, the majority posits such continuances should not be charged against Webb because she never filed a motion to suppress evidence like Gwin did. The majority court’s reasoning escapes me.

First, there is nothing in the record that it was the delay resulting from Gwin’s motion to suppress that spurred the prosecutor and Blount to ask for continuances. Second, even if Gwin’s suppression motion, alone, caused a period of delay, Blount knew both of his clients would benefit from the suppression motion if Blount succeeded on his motion. After all, Webb’s and Gwin’s charges arose from the same events and cache of drugs. Gwin was owner of the house, so it was he who had the standing to file the suppression motion. Nonetheless, Blount was well aware that Webb would benefit if Gwin prevailed on his suppression motion, and it would enure to Webb’s benefit to join Gwin in any continuances needed to present evidence in support of the motion.

Webb’s and Gwin’s pretrial records are identical except for the suppression motion filed on Gwin’s behalf. Blount appeared at each pretrial motion hearing representing both Gwin and Webb. As hard as I try, I simply fail to understand how this court can hold Gwin’s speedy-trial right was not violated, but Webb’s was. As in Gwin, it only makes sense to conclude Webb’s right for speedy trial was not violated.

Corbin, J., joins this dissent.

       We note that under federal law, a time exclusion occasioned by the filing of a pretrial motion applicable to one defendant applies to all co-defendants, as provided by the Speedy Trial Act, 18 U.S.C. §§ 3161-3174 (1999).

       The majority opinion cites the case of Smith v. State, 308 Ark. 603, 826 S.W.2d 256 (1992), for the proposition that an appellant cannot benefit from objections made on behalf of another defendant. The Smith case is simply inapplicable. Here, as already stated, the record shows Gwin’s and Webb’s attorney, Blount, appeared for both defendants at the same pretrial hearings, where they joined in requests for continuances.


source: Caselaw Access Project

author: LAVENSKI R. SMITH, Justice.

license: Public Domain

text:
    Gary BEAN v. OFFICE of CHILD SUPPORT ENFORCEMENT
    99-131
    9 S.W.3d 520
    Supreme Court of Arkansas
    Opinion delivered February 3, 2000
   LAVENSKI R. SMITH, Justice.

Appellant Gary Bean appeals a Nevada County Chancery Court decision which found Bean to be the father of M.N. Bean contends that the trial court erred because another man had acknowledged paternity two days after the child was born some six years prior to this action. The Arkansas Court of Appeals certified this matter to us as a case presenting an issue of significant public interest and involving a legal principle of major importance. We, therefore, have jurisdiction under Ark. Sup. Ct. R. 1-2 (d)(2) and 1-2 (b)(4), (5) and (6).

Facts

Donna Kay Hale, M.N.’s mother, married Jeffery Bryant Smith on November 21, 1988, in San Jose, California. Hale soon separated from Smith because of alleged abuse in the marriage. Hale moved from California to Arkansas in June 1989 after which she began working at Delta Express in Russellville, Arkansas. Within a week of starting her new job, Hale met Bean at work, and the two began dating sometime in early July 1989. According to Hale, their relationship became intimate within a week of their initial meeting, and the couple were sexually involved until mid-November 1989. Bean, however, testified at trial that he met Hale in 1988, and last saw her in June 1989. Hale found out she was pregnant in December 1989, and she apparently called Bean at his place of work to inform him of the news. According to Hale, Bean did not want to have anything to do with the child.

While pregnant with Bean’s child, Hale met Stanley Ross Nichols. Hale testified that the two became friends in January 1990 but admitted on cross-examination that they actually met in November 1989. Within two months, Hale moved in with Nichols. Hale and Nichols became sexually intimate. On May 3, 1990, Hale secured a divorce from Smith. Two days after M.N.’s birth, on June 28, 1990, Hale and Nichols executed an “Affidavit of Birth Out of Wedlock” stating that they were M.N.’s natural parents. In particular, the Department of Health form provided that the child would bear Nichols’s surname and that Nichols was “acknowledging possible financial and legal responsibilities to the child herein.” Nichols agreed to assume the obligations of being M.N.’s father. Nichols’s name appears on the birth certificate as M.N.’s father.

According to Hale, she and Nichols continued to cohabit until late July 1990 when Hale went to a rodeo with Bean causing Nichols to end the relationship with Hale. Soon thereafter, Hale moved to Gloucester, New Jersey. There, she filed a paternity action against Nichols in December 1990. In April 1991, Hale married David Dibartolo in New Jersey. The couple divorced in October 1995. During this time, Hale indicated at trial that she contacted Bean about twice between 1993 and 1995. Bean acknowledged that he first learned about M.N. in 1993 when Hale called him.

Hale subsequently returned to Arkansas and filed for and received Medicaid benefits for M.N. Appellee, Arkansas Child Support Enforcement Unit (“CSEU”), brought a paternity action against Bean based upon Hale’s allegations on April 22, 1996, alleging paternity and seeking past child support for M.N.’s birth, lying-in expenses from the birth, health insurance, future child support, and attorney’s fees and costs. Bean answered this complaint on May 29, 1996, denying that he was M.N.’s father and moving to dismiss the action against him. In an order entered October 8, 1996, the chancery court denied Bean’s motion to dismiss and ordered DNA testing of Hale, M.N., and Bean pursuant to Ark. Code Ann. § 9-10-108 (Repl. 1995).

On December 23, 1996, Bean filed a motion for summary-judgment arguing that Nichols is M.N.’s father by operation of law because Nichols signed the Affidavit ofBirth Out of Wedlock or, in the alternative, Smith, Hale’s first husband, is M.N.’s presumed father. Bean argued that he was entitled to judgment as a matter of law pursuant to Ark. Code Ann. § 9-10-120 (1995). CSEU answered, and the court held a hearing on this motion on January 28, 1997. There, Bean argued that Ark. Code Ann. §§ 9-10-115 (Repl. 1995) and 9-10-120 control to require as a matter of law that Nichols be determined the father because he executed an acknowledgment to that fact, and more than five years had passed since that acknowledgment was signed. In response, CSEU argued that these statutes did not go into effect until 1995 and could not be applied retroactively. Additionally, CSEU contended that such evidence only shifted the burden to Nichols to rebut a presumption that he is M.N.’s father. CSEU then submitted evidence of a DNA test which excluded Nichols as M.N.’s father. Bean’s attorney objected to the admission of the test results, arguing that the test is hearsay and that Bean would be challenging that test at the paternity hearing. The court allowed the test results to be admitted for purposes of that hearing only. The court denied Bean’s motion for summary judgment.

The court held the paternity hearing on March 4, 1998. At the hearing Bean renewed his argument that Nichols’s affidavit established Nichols as M.N.’s father by operation of law. CSEU, consistent with its pleadings, argued that the governing statutes could not be applied retroactively to cause such an outcome. CSEU presented witnesses including Bean, Hale, Hale’s mother Mary Ray, and CSEU Investigator Phyllis Beaty, who all testified to the facts noted above. At the close of CSEU’s case, Bean’s attorney moved for a directed verdict arguing that two necessary parties, Smith and Nichols, were not parties in the case and that a paternity action could still be pending against Nichols in New Jersey. Furthermore, there was no evidence presented at this trial that Nichols was not M.N.’s father, and the statute of limitations to modify an acknowledgment of paternity had already run by the time Hale filed this action. CSEU replied that Smith and Nichols were not necessary parties because Hale’s and Smith’s divorce decree indicated that no children were born of the marriage, and Ark. Code Ann. §§ 9-10-115 and 9-10-120 cannot be applied retroactively to make Nichols the father by operation of law. The court overruled Bean’s motion for directed verdict.

Bean presented several witnesses, including Robert E. McGhee, Jr., Ph.D., who analyzed the DNA test results establishing Bean’s paternity of M.N.. McGhee testified that the lab’s test results only indicated that Bean is M.N.’s father by a 926-to-one margin, which indicates that the test was “not even close to clear and convincing.” Furthermore, McGhee testified that the “gel” tests were unreliable because the “gels” migrated, making them inaccurate to compare. McGhee testified that the tests could have been rerun, but they were not, which calls into question the test procedures used. On cross-examination, McGhee indicated that the State’s 95% match requirement means that there is only a nineteen-to-one requirement to prove paternity.

At the close of the hearing, Bean again moved for directed verdict, which the trial court denied. However, based on McGhee’s testimony at trial, the court provided Bean the opportunity to have additional DNA testing performed by McGhee at Bean’s expense. Bean agreed to this testing, and the trial court entered an order on March 27, 1998, ordering additional DNA testing. The additional testing indicated that there was a 99.99% probability of paternity, as noted in the report dated May 4, 1998. With the results of the additional testing in hand combined with the testimony at the hearing, the trial court entered its order on September 21, 1998, finding Bean to be M.N.’s father. The chancery court ordered Bean to carry insurance on the child, as well as pay $85.00 a week in child support beginning with the date of the filing of the action against him. This resulted in a judgment of $10,030.00 with 10% interest thereon to be paid at a rate of $8.50 per week in addition to his regular support payments. Bean filed his Notice of Appeal on October 9, 1998.

On appeal, Bean argues that the trial court erred in determining that he is M.N.’s father because Nichols acknowledged paternity in writing two days after M.N. was born. Bean divides his argument into three parts. First, he argues that the court erred in failing to follow the statutory procedure for modification of a paternity acknowledgment. Second, he argues that the statute of limitations for modification of a paternity acknowledgment has run. Third, he argues that even if paternity was correctly established in Bean, the chancery court erred in awarding child support from the date the complaint was filed instead of the date judgment was entered.

We review chancery cases de novo on the record, but do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999); Office of Child Support Enf. v. Eagle, 336 Ark. 51, 983 S.W.2d 429 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999).

Bean’s first two arguments center on the “Affidavit of Birth Out of Wedlock,” which Nichols signed two days after M.N. was born, and the birth certificate, which lists Nichols as M.N.’s father. Bean offered these as conclusive evidence that Nichols is M.N.’s father by operation of law under Ark. Code Ann. § 9-10-120. As he did below, Bean argues that Nichols’s signature and name on these documents, as well as the fact that more than five years have passed since these documents were executed, precludes the court from considering the matter and establishing paternity in Bean. In rebuttal, CSEU argues that the affidavit Nichols signed is not an acknowledgment of paternity. Furthermore, CSEU argues that the law which establishes paternity by operation of law upon signing an acknowledgment of paternity was not in effect at the time that Nichols signed the affidavit; therefore, the statute on which Bean relies, which went into effect in 1995, does not retroactively establish Nichols as M.N.’s father by operation of law. In addition, the five-year statute of limitations cannot apply, as well, because the affidavit created no obligation on Nichols’s part as M.N.’s father because no statute was in effect to create a voluntary acknowledgment of paternity to be a binding, conclusive obligation under law. We hold that A.C.A. § 9-1-120 does not apply retroactively and, therefore, affirm.

I. The Applicable Statutes and the Form Acknowledging Paternity and 9-10-120.

At the time of M.N.’s birth in 1990, the applicable paternity statute, Ark. Code Ann. § 9-10-115, provided:

The court may, at any time, enlarge, diminish, or vacate any such order or judgment in the proceedings under this section and §§ 9-10-101 — 9-10-103, 9-10-105, 9-10-110, 9-10-111, and 9-10-117 — 9-10-119 as justice may require and on such notice to the defendant as the court may prescribe.

Act 1091 of 1995 modified this statute substantially. This revised version, which was in effect when Hale filed this paternity action against Bean in 1996, stated:

9-10-115. Modification of orders or judgments.
(a) The chancery court may, at any time, enlarge, diminish, or vacate any such order or judgment in the proceedings under this section, except in regard to the issue of paternity, as justice may require and on such notice to the defendant as the court may prescribe.
(b) The court shall not set aside, alter, or modify any final decree, order, or judgment of paternity where paternity blood testing, genetic testing, or other scientific evidence was used to determine the adjudicated father as the biological father.
(c) (1) Upon request for modification of a judicial finding of paternity or a support order issued pursuant to § 9-10-120, if the court determines that the original finding of paternity or support order did not include results of scientific paternity testing, consent of the parents, or was not entered upon a party’s failure to comply with scientific paternity testing ordered by the court, the court shall, upon request when paternity is disputed, direct the biological mother, the child, and the adjudicated or presumed father to submit to scientific testing for paternity, which may include deoxyribonucleic acid testing or other tests as provided by § 9-10-108.
(2) In no event shall the adjudication or acknowledgment of paternity be modified later than five (5) years after such adjudication or execution of such acknowledgment.
(d) If the court determines, based upon the results of scientific testing, that the adjudicated or presumed father is not the biological father, the court shall, upon request of an adjudicated or presumed father, set aside a previous finding of paternity and relieve the adjudicated or presumed father of any future obligation of support or any back child support as authorized under § 9-14-234 as of the date of entry of the order of modification.
(e) If the court determines, based upon the results of scientific testing, that the presumed father is the biological father, the court shall enter an order adjudicating paternity and setting child support in accordance with § 9-10-109, the guidelines for child support, and the family support chart.

In addition, Act 1091 of 1995 created Ark. Code Ann. § 9-10-120, which stated :

9-10-120. Effect of acknowledgment of paternity.
(a) A man is presumed to be the father of a child for all intents and purposes if he and the mother execute an acknowledgment of paternity of the child pursuant to § 20-18-408 or § 20-18-409, or a similar acknowledgment executed during the child’s minority.
(b) (1) Acknowledgments of paternity shall by operation of law constitute a conclusive finding of paternity, subject to the modification of orders or judgments under § 9-10-115, and shall be recognized by the chancery courts and juvenile divisions thereof as creating a parent and child relationship between father and child.
(2) Such acknowledgments of paternity shall also be recognized as forming the basis for establishment and enforcement of a child support order without a further proceeding to establish paternity.
(c) Upon submission of the acknowledgment of paternity to the Division of Vital Records of the Department of Health, the State Registrar of Vital Records shall accordingly establish a new certificate of birth reflecting the name of the father as recited in the acknowledgment of paternity.

Based on the 1995 revised statutes, Bean argues that Nichols’s execution of the “Affidavit of Birth Out of Wedlock” constitutes an “acknowledgment of paternity” sufficient to qualify by operation of law as a conclusive finding of paternity under Ark. Code Ann. § 9-10-120(a) and (b)(1) and, because more than five years had passed since Stanley signed the affidavit, this conclusion could not be modified by the chancery court pursuant to Ark. Code Ann. § 9-10-115 (c)(2). CSEU, on the other hand, argues that not only was this affidavit not the type of form contemplated by the Act but also that Act 1091 of 1995 cannot be retroactively applied to this affidavit which was signed in 1990 to bring it under the statute and make it binding on Nichols.

We first consider whether the “Affidavit of Birth Out of Wedlock” is the type of acknowledgment of paternity contemplated by the statutes. Ark. Code Ann. § 9-10-120(a) notes that the court may consider “an acknowledgment of paternity of the child pursuant to § 20-18-408 or § 20-18-409, or a similar acknowledgment executed during the child’s minority” when it makes a determination of paternity. Ark. Code Ann. §§ 20-18-408 and 20-18-409, created by Act 928 of 1993 and partiálly amended in 1995; established an actual form to be used as ah affidavit of paternity so that parents could establish paternity. As noted at the paternity hearing, CSEU Investigator Phyllis Beaty offered a sample of a form used for such a purpose, and the form was titled “Affidavit Acknowledging Paternity.”

Clearly, these statutes were not in effect in 1990 when Nichols signed the “Affidavit of Birth Out of Wedlock” to allow that acknowledgment to comply with Ark. Code Ann. § 20-18-408 or § 20-18-409. However, Ark. Code Ann. § 9-10-120(a) also allows a “similar acknowledgment” to suffice if it is executéd'during the child’s minority. The pertinent language of that affidavit states:

The following affidavit must be signed in the presence of a notary public by both parents of a child born out of wedlock if there is mutual consent for the child to carry the surname of the father or the legal surname of the mother, and for the birth certificate to show information on the father.

The form goes on to state:

We, the natural parents of M.N. Ross Nichols born in Russellville, Pope County, Arkansas, on 06-26-90, wish to have our child carry the surname as indicated in the box checked below and for the birth certificate to show all requested information on the father. We understand that by signing this affidavit, the natural father is acknowledging possible financial and legal responsibilities to the child named herein.

Both Nichols’s and Hale’s notarized signatures appear on the form. The form notes that M.N. is to carry the surname of Nichols, and that is the surname that appears on M.N.’s birth certificate. In reading the “Affidavit of Birth Out of Wedlock” signed by Nichols, we hold that it would comply with the intent of § 9-10-120 (a) as “a similar acknowledgment.”

II. Retroactive Effect of the Applicable Statutes

However, whether the “Affidavit of Birth Out of Wedlock” suffices as “a similar acknowledgment” under the statutes, does not resolve whether the statutes, enacted five years after Nichols signed this form, apply retroactively to such acknowledgment. Bean argues that the statutes do have a retroactive effect because it is a civil act that affects eligibility for welfare and is “remedial in nature.” Furthermore, Bean argues that because this act affected the State’s eligibility for federal aid, the act can be applied retroactively. Bean also cites Littles v. Fleming, 333 Ark. 476, 970 S.W.2d 259 (1998) (“Littles IF’), for the proposition that this court has already applied Act 1091 of 1995 retroactively. To the contrary, CSEU argues that all legislation is intended to act prospectively unless the purpose and intent of the legislature is to give the statutes retroactive effect which is expressly declared or necessarily implied from the language used. In that Act 1091 contained no express retroactivity, the language of that Act could only intend a prospective application. CSEU is correct.

Our rule on this point could not be more clear. Retroactivity is a matter of legislative intent. Unless it expressly states otherwise, we presume the legislature intends for its laws to apply only prospectively. Estate of Wood v. Arkansas Dep’t of Human Servs., 319 Ark. 697, 894 S.W.2d 573 (1995) (citing Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297 (1958)). Any interpretation of an act must be aimed at determining whether retroactive effect is stated or implied so clearly and unequivocally as to eliminate any doubt. In determining legislative intent, we have observed a strict rule of construction against retroactive operation and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it, to operate prospectively only and not retroactively. See Arkansas Rural Med. Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987); Chism, supra; Arkansas State Highway Comm’n v. Hightower, 238 Ark. 569, 383 S.W.2d 279 (1964).

However, this rule does not ordinarily apply to procedural or remedial legislation. Gannett Rover States Publ’g Co. v. Arkansas Industrial Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990); Forrest City Mach. Works v. Aderhold, 213 Ark. 33, 616 S.W.2d 720 (1981). The strict rule of construction does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962). Procedural legislation is more often given retroactive application. Barnett v. Arkansas Transp. Co., 303 Ark. 491, 798 S.W.2d 79 (1990). The cardinal principle for construing remedial legislation is for the courts to give appropriate regard to the spirit which promoted its enactment, the mischief sought' to be abolished, and the remedy proposed. Arkansas Dep’t of Human Servs. v. Walters, 315 Ark. 204, 866 S.W.2d 823 (1993); Skelton v. B.C. Land Co., 260 Ark. 122, 539 S.W.2d 411 (1976) (citing United States v. Colorado Anthracite Co., 225 U.S. 219 (1912)). In addition, we have approved retroactive application of civil statutes, especially those concerning the fiscal affairs of government. For example, we held that the State can retroactively impose taxes. DuLaney v. Continental Life Ins. Co., 185 Ark. 517, 47 S.W.2d 1082 (1932). The United States Supreme Court has also said taxes can be retroactively applied. Reinecke v. Smith, 289 U.S. 172 (1933).

As noted above, Bean argues that not only does Act 1091 of 1995 affect the fiscal affairs of the State but that it is remedial in nature. Bean notes that Act 1091 was enacted to “conform with federal requirements set forth in title IV-D of the Social Security Act relative to voluntary paternity acknowledgments.” The relevant portion of Title IV-D of the Social Security Act, codified at 42 U.S.C.S. §§ 651 — 676, includes § 668 entitled “Encouragement of States to adopt simple civil process for voluntarily acknowledging paternity and a civil procedure for establishing paternity in contested cases.” This section states:

In the administration of the child support enforcement program under this part, each State is encouraged to establish and implement a simple civil process for voluntarily acknowledging paternity and a civil procedure for establishing paternity in contested cases.

This section was enacted in 1988 and amended in 1996. As the language indicates, there is nothing in this particular section which required immediate adoption of a specific procedure, but instead “encouraged” the establishment of a procedure of voluntary-acknowledgment. In fact, the 1996 amendment of § 668 struck “a simple civil process for voluntarily acknowledging paternity” as part of that statutory section. Compliance with the federal statutes is required in order for the states to continue to receive certain federal benefits; however, § 668 does not appear to be mandatory as far as voluntary acknowledgments are concerned, but instead actually focuses on the establishment of a civil procedure for establishing paternity.

Using that history, determining whether the legislature intended Act 1091 of 1995 to be retroactive becomes clearer. As noted, i'n the absence of an express declaration, in order for a statute to be applied retroactively, it either must affect the fiscal viability of the State or qualify as remedial. To be remedial, the courts must “give appropriate regard to the spirit which promoted its enactment, the mischief sought to be abolished, and the remedy proposed,” but cannot “disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation.” Harrison, supra.

Whether the State would be fiscally harmed by failure to include the “voluntary acknowledgment of paternity” language was a prospective concern, as there is no indication that funds had been cut off or were likely to be. The federal statute did not require, but only “encouraged,” compliance with the provision ¿nd, in fact, such language was removed from § 668 a year after the passage of Act 1091. Bean notes that the Emergency Clause of Act 1091 stated that there was a problem with the voluntary acknowledgment of paternity, and failure to remedy that provision could affect the State’s right to federal benefits. Bean fails to note, however, that the Emergency Clause also states that “an emergency is hereby declared to exist and this act being necessary for the immediate preservation of the public peace, health and safety shall he in full force and effect from and after its passage and approval.” (Emphasis added.) This is not a definite statement that the Act will apply retroactively. Finally, retroactive application of Act 1091 for remedial purposes would only be appropriate if it did “not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation.” If Act 1091 were applied to any type of “acknowledgment” signed before the Act’s effective date a new obligation would be created. The man signing the form, by operation of law (see Ark. Code Ann. § 9-10-120), would become the father conclusively when, before Act 1091 was passed, such evidence could only be used as persuasive, presumptive evidence of paternity.

Bean also argues that we have already applied Act 1091 retroactively in Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998)(“Flemings II"). We disagree with Bean’s analysis of Flemings. It simply is inapposite to the instant facts. In that case, the issue was whether “one, who has been adjudicated to be the father of a child is entitled to relief from future child-support obligations if scientific testing proves that he is not the child’s biological father.” There, Littles was adjudicated to be the father of a child in 1982 when he failed to pay for the DNA testing to establish paternity. He did not appeal from the judgment. In 1994, Littles moved the chancellor to order a paternity test, and that motion was granted. The test proved that he was not the biological father, and Littles moved the chancery court in July 1995 to set aside the 1982 paternity judgment, which the court did. We reversed the chancellor’s decision in Flemings v. Littles, 325 Ark. 367, 926 S.W.2d 445 (1996) (“Flemings F). In the reversal decision, we held that the chancellor had no' authority under Ark. Code Ann. § 9-10-115(c)(l) to modify the original judicial finding of paternity because Littles had not met all statutory conditions for the granting of relief. However, in Flemings II, after Litdes returned to the chancery court to have the child-support order modified pursuant to changed circumstances, we allowed a modification of future support pursuant to Ark. Code Ann.§ 9-10-115(d) after a showing of scientific evidence that the adjudicated father was not the natural father. The Flemings cases involved substantially different facts and none of the same issues as the present case. Moreover, the Flemings cases contain no holding respecting retroactive application of Act 1091 for any purpose.

Because we hold that Ark. Code Ann. § 9-10-115 should not be applied retroactively, Bean’s second argument therefore also fails. The five-year statute of limitations found in the then existing version of § 9-10-115(c)(2) cannot apply to the Nichols affidavit. If the voluntary acknowledgment of paternity is not conclusive by operation of law under the law as it existed in 1990, which it is not, then paternity has not been established in Nichols to trigger the running of the statute of limitations.

III. Award of Child Support

In his final point on appeal, Bean argues that if this court determines that the chancellor did not err in finding that he is M.N.’s father, the chancellor did err in awarding child support from the date of the filing of the complaint. Again, Bean argues this point using Ark. Code Ann. § 9-10-115(d) which provides, in part, that:

If the court determines, based upon the results of scientific testing, .that the adjudicated or presumed father is not the biological father, the court shall, upon request of an adjudicated or presumed father, set aside a previous finding of paternity and relieve the adjudicated or presumed father of any future obligation of support or any back child support as authorized under § 9-14-234 as of the date of the entry of the judgment.

Bean argues first that the chancery court erred in failing to set aside the acknowledgment of paternity signed by Nichols and, therefore, there was no statutory compliance because Nichols did not request to have that acknowledgment set aside. Second, Bean argues that the 1995 version of this statute (above) states that the change in child-support responsibility will not go into effect until the entry of the order by the chancellor setting aside the original acknowledgment of paternity.

Bean relies upon the modification provisions of Ark. Code Ann. § 9-10-115. However, those provisions are not relevant to Bean’s child-support obligation because the action filed against him is an original action rather than a modification. Given the possibility of an award from the date of the child’s birth, the chancellor’s decision to award support from the date of the complaint was not clearly erroneous. In response, CSEU argues that because paternity was never established in Nichols, either by adjudication or by his signing the Affidavit of Birth Out of Wedlock (since Act 1091 of 1995 cannot be applied retroactively), there has never been a finding of paternity for the court to set aside under Ark. Code Ann. § 9-10-115. Therefore, Ark. Code Ann. § 9-10-111 (Supp. 1995), which allows the chancery court to award support from as early as the date of the birth of the child, applies. The statute states:

(a) If it is found by the chancery court that the accused is the father of the child and, if claimed by the mother, the chancery court or chancellor shall give judgment for a monthly sum of not less than ten dollars ($10.00) per month for every month from the birth of the child until the child attains the age of eighteen (18) years.

Here, the trial court had the option to award past support from M.N.’s birth forward, but chose instead to award past support from the date of the filing of the complaint against Bean to the time the judgment was entered. This decision was made contrary to both parties’ requests, as Bean, of course, argued that support should begin with the entry of the judgment, and CSEU argued that support should begin from M.N.’s date of birth forward. Because the chancellor could have awarded support from M.N.’s date of birth, his decision to award support from the date of the filing of the complaint was not clearly erroneous.

In conclusion, because CSEU’s claim against Bean is actually an original action to establish paternity, as opposed to an action to modify a paternity order under Ark. Code Ann. § 9-10-115, the judge correctly found that Bean is M.N.’s father pursuant to Ark. Code Ann. §■ 9-10-108(a)(6)(B). This section of the statute states:

If the results of the paternity tests conducted pursuant to subdivision (a) (2) of this section establish a ninety-five percent (95%) or more probability of inclusion that the putative father is the biological father of the child, after corroborating testimony concerning the conception, birth, and history of the child, such shall constitute a prima facie case of establishment of paternity, and the burden of proof shall shift to the putative father to rebut such proof.

Here, two paternity tests established that Bean is M.N.’s father. Those tests, along with the corroborating evidence offered by Hale and the other witnesses at trial, constituted a prima facie case of the establishment of paternity. As such, the burden shifted to Bean to rebut that evidence, which he attempted to do by offering the Affidavit of Birth Out of Wedlock and birth certificate as evidence of Nichols’s parentage of M.N. However, under the law applicable when Nichols executed those documents, they constituted presumptive evidence of paternity only, not conclusive evidence. Taking all of the evidence into account, the chancellor determined that Bean did not rebut the presumption that he is M.N.’s father. The chancellor’s decision was not clearly erroneous.

Affirmed.

       This statute was again amended in 1997 and 1999. These versions, however, do not apply to this case because they were not in effect when the action was filed or when Nichols signed the affidavit.

       This statute was amended in 1997. This version, however, does not apply to this case because it was not in effect when the paternity action was filed or when Nichols signed the affidavit.

       42 U.S.C.S. §§ 651-676.


text:
    James GWIN v. STATE of Arkansas
    CR 99-1027
    9 S.W.3d 501
    Supreme Court of Arkansas
    Opinion delivered February 3, 2000

      Darrel Blount, for appellant.

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

Petitioner James Gwin, seeks a writ of prohibition to end criminal proceedings filed against him in Montgomery County Circuit Court. Montgomery County Sheriff’s deputies arrested Gwin on April 3, 1998. The State charged Gwin by information with two counts of deliyery of a controlled substance, one count of possession with intent to deliver, one count of possession, and one count of possession of paraphernalia. Gwin contends that all charges against him must be dismissed because the State failed to bring him to trial within one year of his arrest pursuant to Ark. R. Crim. P. 28.2(c). We disagree and deny his Petition.

Facts

Following Gwin’s arrest, the criminal docket sheet reflects some activity in the file up to October 2, 1998, and then none until May 1999. On April 10, 1998, Gwin waived arraignment, pleaded not guilty, and the court set the matter for pretrial on July 10, 1998. On April 16, 1998, Gwin filed a motion for discovery. The State responded to the discovery motion on June 1, 1998. On June 16, 1998, Gwin filed a motion to suppress. The State filed a First Supplemental Response to the discovery motion on July 1, 1998. On July 10, 1998, the trial judge postponed the pretrial hearing until September 4, 1998. On September 4, 1998, the court again postponed the pretrial hearing moving it to October 2, 1998. The next docket entry records Gwin’s motion to dismiss.

The transcript from the proceedings on these dates offers some aid in gathering the facts. On July 10, 1998, the court called Gwin’s pretrial hearing to order. The prosecutor, Tim Williamson, in the presence of Gwin and his counsel, Darrell Blount, stated to the court that he anticipated additional motions from the defendant and that a minimum of three hours would be needed to address lab results, the search warrant, and other issues. Mr. Blount acknowledged that more motions would likely be forthcoming. Circuit Judge Gayle Ford directed counsel to get a date from his case coordinator. On September 4, 1998, the court again took up the pretrial hearing whereupon the prosecutor announced, “There’s a joint motion to continue this matter for pretrial. Mr. Blount and I still have some unresolved issues prior to pretrial in this case and we anticipate the pretrial hearing to be approximately four to five hours.” On the prosecutor’s suggestion, Judge Ford reset the hearing on the motions for October 2, 1998. However, at the October 2, 1998, hearing, the following conversation occurred:

By THE COURT: Mr. Blount, do you have this matter of Webb and Gwin and that matter needs to be set, is that right?
By Mr. BLOUNT: Yes, Your Honor. There’s going'to be a fairly lengthy pretrial.
By THE COURT: I may have to give you a special setting, I don’t know, we’ll see.

Neither the docket sheet nor the record reflect any other activity until May 19, 1999, when Gwin moved to dismiss for violation of Ark. R. Crim. P. 28.3(c). Judge Ford heard arguments of counsel on the dismissal motion on July 30, 1999. Gwin argued that even excluding the delays from July 10, 1998, to October 2, 1998, twelve months elapsed before he was brought to trial. Gwin also argued that the trial judge’s docket contained no notation excluding time for speedy-trial purposes. In response, the State argued that Ark. R. Crim. P. 28.3 excluded the period of time beginning with Gwin’s suppression motion until thirty days after the trial court takes that motion under advisement. Judge Ford denied the dismissal motion. Judge Ford made no specific findings of excluded periods. Consistent with our rules and precedent, Gwin petitioned this court for a writ of prohibition. Richards v. State, 338 Ark. 801, 2 S.W.3d 766 (1999).

Speedy Trial

Under Ark. R. Crim. P. 28.1 an accused must be brought to trial within twelve months unless necessary delay occurs as authorized in Ark. R. Crim. P. 28.3. Once the defendant presents a prima facie case of a speedy-trial violation, i.e., that the trial is or will be held outside the applicable speedy-trial period, the State has the burden of showing that the delay was the result of the defendant’s conduct or was otherwise justified. Eubanks v. Humphrey, 334 Ark. 21, 972 S.W.2d 234 (1998); Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998); Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999). In Arkansas, the speedy-trial period commences to run “without demand by the defendant.” Ark. R. Crim. P. 28.2. Additionally, the defendant can assert the speedy-trial right unless he fails to move for dismissal prior to a plea of guilty or a trial. Ark. R. Crim. P. 28.1(f). Tanner v. State, 324 Ark. 37, 42, 918 S.W.2d 166 (1996). In the instant case, Gwin unquestionably established a prima facie case in that 483 days had elapsed since his arrest by the time the court heard his motion to dismiss for speedy-trial violation. The only issue in this case is a determination of the appropriate exclusion periods, if any, within that span.

Permissible periods of exclusion are outlined in Ark. R. Crim.P. 28.3. The State points out that Rule 28.3(a) specifically excludes time for “hearings on pretrial motions.” The State then contends that the period of time excluded by “hearings on pretrial motions” extends from the filing of the motion until the motion is heard by the court and no more than thirty days after the court takes the motion under advisement. Rule 28.3(a) provides:

(a) The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on the competency of the defendant and the period during which he is incompetent to stand trial, hearings on-pretrial motions, interlocutory appeals by the defendant or the state, and trials of other charges against the defendant. No pretrial motion shall be held under advisement for more than thirty (30) days, and the period of time in excess of thirty (30) days during which any such motion is held under advisement shall not be considered an excluded period. [Emphasis added.]

We have not previously addressed the specific meaning of the phrase “hearings on pretrial motions.” We agree with the State’s interpretation that the excluded period contemplated by the rule begins at the time the pretrial motion is made and includes those periods of delay attributable to the defendant until the motion is heard by the court and not more than thirty days thereafter. This construction is consistent with our cases on defendant competency hearings also found in Rule 28.3. Brawley v. State, 306 Ark. 609, 816 S.W.2d 598 (1991). We note this is also consistent with the federal speedy-trial rule. Applying this interpretation to the instant case, we conclude that Gwin’s motion to suppress began an excluded period that included the continuances that the record reflects to have been jointly requested. When the trial court granted the final continuance found in the record on October 2, 1998, it too appeared to be a joint request. A joint continuance is presumably desired by both parties, which would include the defendant. Gwin obtained the desired benefit of more preparation time and cannot now be heard to complain that it was too much. Certainly, this case would have been aided immensely by contemporaneous docket notes by the trial court and more explicit statements by counsel. However, the record as we find it does not show the trial court erred in denying Gwin’s motion to dismiss for speedy-trial violation. It is certainly true that the defendant is not required to bring himself to trial or to bang at the courthouse door. However, once a pretrial motion is made on his behalf and continuances granted at his request, he must do more than mark his calendar for some time beyond one year of his arrest.

Writ of prohibition denied.

       The federal rule on excluded periods found at 18 U.S.C.S. § 3161(h) contains the following:
      (1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to—
      (A) delay resulting from any proceeding, including any examinations to determine the mental competency or physical capacity of the defendant;
      (B) delay resulting from any proceeding, including any examination of the defendant, pursuant to section 2902 of tide 28, United Sates Code;
      (C) delay resulting from deferral of prosecution pursuant to section 2902 of title 28, United Sates Code;
      (D) delay resulting from trial with respect to other charges against the defendant;
      (E) delay resulting from any interlocutory appeal;
      (F) delay resulting from any pretrial motion, from the filing of the motion through the conclusions of the hearing on, or other prompt disposition of, such motion; [Emphasis added.]


author: Per Curiam.

text:
    ST. PAUL FIRE & MARINE INSURANCE CO. v. MURRAY GUARD, INC.
    99-515
    9 S.W.3d 501
    Supreme Court of Arkansas
    Opinion delivered February 3, 2000

      Barrett & Deacon, A Professional Association, by: D.P. Marshall Jr. and James F. Gramling, for appellant.
    No response.
   Per Curiam.

In response to appellant’s motion to lift the stay in the above-styled case, now docketed in the court of appeals, and to consolidate with NationsBank v. Murray Guard, case no. 99-891, filed with this court, we deny the motion without prejudice. We recognize that the similarity of the two cases, each arising from substantially the same set of facts, presents a potential for inconsistent decisions, and for that reason, we are reassigning case no. 99-515 to this court, without consolidating the two cases at this time.

Motion denied.

GLAZE, and Imber, JJ., not participating.


author: PER CURIAM.

text:
    Steven F. TAYLOR v. STATE of Arkansas
    CR 98-15
    9 S.W.3d 515
    Supreme Court of Arkansas
    Opinion delivered February 3, 2000

      Stuart Vess, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Ass’t Att’y Gen., for appellee.
   PER CURIAM.

In 1995 and 1996, the State filed three informations that charged Steven Taylor with a variety of drug-related offenses. In CR 95-648, Taylor was charged with delivery of a controlled substance. In CR 96-113, he was charged with simultaneous possession of drugs and firearms. In CR 96-190, Taylor was charged with two counts of possession of a controlled substance with intent to deliver and one count of possession of a firearm. In exchange for Taylor’s guilty plea, the charge in CR 95-648 was nolle pressed, and he received 432 months’ imprisonment in cases CR 96-190 and CR 96-113. Following his guilty plea, Taylor filed a timely petition for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. In the petition, he alleged he did not receive effective assistance of counsel as guaranteed by the Sixth Amendment. After a hearing, the circuit court entered an order denying relief. We conclude that the circuit court’s order does not comply with the requirements of Rule 37.3, and, therefore, we must reverse and remand the case for written findings of fact and conclusions of law.

During the postconviction hearing, evidence was introduced concerning a possible conflict of interest that existed in CR 96-113. Shortly after the charges were filed, Phyllis Worley was appointed to represent Taylor in all three cases. After reviewing the prosecutor’s file, she discovered that she, at one time, had represented the confidential informant that was used in cases CR 95-648 and CR 96-113. Consequently, the trial court granted her motion to be relieved in both cases.

For reasons that were never made clear, Ms. Worley was again appointed to represent Taylor in CR 96-113. Another attorney was also appointed to assist her. During the hearing, she testified that once she was reappointed to the case, she alerted the prosecutor to the possible conflict that she had with the confidential informant. She remained on the case, however, because the prosecutor assured her that in the event of a trial, the confidential informant would not testify.

Taylor now argues that the circuit court erred when it denied relief on his claim that he did not receive effective assistance of counsel. First, Taylor asserts that he was prejudiced by Ms. Worley’s conflict of interest in CR 96-113. Taylor contends that the charges in that case were the result of the execution of a nighttime search warrant at his residence. He states that although he desired to challenge the validity of the warrant, Ms. Worley could not act on his request because the affidavit that supported the warrant contained information that was received from the confidential informant.

Taylor also raises other claims of ineffective assistance of counsel. Taylor argues that the attorneys that represented him failed to adequately investigate the case and failed to fully inform him of the charges against him. According to Taylor, his attorneys’ failure to conduct an adequate investigation played a role in their failure to discover grounds to challenge the nighttime search.

Taylor also asserts that his attorneys allowed him to plead guilty while under the influence of alcohol and drugs. He contends that their failure to recognize his intoxication caused him to unknowingly waive his right to a jury trial. He further suggests that his intoxicated state at the plea hearing led to a denial of due process.

We cannot reach the merits of Taylor’s arguments because the circuit court did not enter written findings of fact and conclusions of law as required by Ark. R. Cr. P. Rule 37.3. In pertinent part, Rule 37.3(c) provides that after a hearing, “[t]he court shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” (Emphasis added.) In Williams v. State, 272. Ark. 98, 612 S.W.2d 115 (1981), we noted that “[w]e have held without exception that this rule is mandatory and requires written findings.” In Baumgarner v. State, 288 Ark. 315, 705 S.W.2d 10 (1986), we made it clear that the requirement of written findings of fact applies to any issue upon which a Rule 37 hearing is held.

In this case, the circuit court’s order is conclusory. The order does not reflect how the circuit court applied the standard for ineffective-assistance-of-counsel claims, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), to the allegations that were the subject of the postconviction hearing. There is also no indication that the circuit court applied the standards of Cuyler v. Sullivan, 446 U.S. 335 (1980), for ineffective-assistance-of-counsel claim based on a conflict of interest.

Accordingly, we must reverse and remand the case for findings that comply with the rule. If Taylor desires to appeal those findings, he must renew the appeal process in this court with the filing of another notice of appeal.

Reversed and remanded.


author: WH. “Dub” ARNOLD, Chief Justice.

text:
    Eric Scott PIKE v. BENTON CIRCUIT COURT, The Hon. Tommy J. Keith, Judge
    CR 99-982
    10 S.W.3d 447
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000

      Doug Nowood, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   WH. “Dub” ARNOLD, Chief Justice.

Petitioner Eric Scott Pike petitions this court to issue a writ of prohibition to the circuit court on the grounds that that court lacks personal jurisdiction over him due to the fact that his probationary period has ended. We hold that a writ of prohibition is not an appropriate remedy in this case and deny the petition.

On November 10, 1993, petitioner pleaded guilty to four counts of forgery, a Class C felony. The trial court initially deferred acceptance of the petitioner’s guilty plea and gave him three years of supervised probation, pursuant to Act 346 of 1975, codified as Ark. Code Ann. § 16-93-303 (Supp. 1997). On January 17, 1995, the State filed a petition to revoke petitioner’s probation. At the probation revocation hearing, petitioner admitted that he had violated the terms of his probation; however, the trial court extended his probationary period for two more years, without accepting his initial guilty plea or revoking his Act 346 status.

On October 8, 1996, the State again filed a petition to revoke petitioner’s probation. At the second probation revocation hearing, on September 4, 1997, the petitioner again admitted to committing the violations contained in the State’s petition. Based on that admission, the court then accepted petitioner’s initial guilty plea on the forgery charges, revoked his Act 346 status, sentenced him to 120 days in the Arkansas Department of Community Punishment Regional Facility, with drug treatment and Therapeutic Community directed, and extended his probation for twenty-four additional months. Further, the court ordered petitioner to pay the balance of his fines, costs, and restitution at the rate of $50 per month plus a $5 monthly processing fee, beginning sixty days after his release. The court’s order filed on September 26, 1997, reflects the same judgment and disposition.

Subsequently, the State filed a third petition to revoke petitioner’s probation on June 5, 1998, amending said petition on March 17, 1999. In response, petitioner filed a motion to dismiss the State’s petition, alleging that the trial court had lost jurisdiction over him, pursuant to McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), when it had accepted his initial plea of guilty to the forgery charges at the preceding probation revocation hearing on September 4, 1997. Petitioner’s motion was denied.

In an April 19, 1999, probation revocation hearing, petitioner renewed his motion to dismiss, which was again denied. He then admitted that he had violated the terms of his probation. The trial court denied the State’s petition to revoke, but found that petitioner had violated the conditions of his probation and sentenced him to 150 days in the Benton County Jail for contempt of court. The court entered judgment to that effect on May 26, 1999. The trial court subsequently stayed entry of the judgment pending the outcome of this action seeking a writ of prohibition against the circuit court.

Petitioner contends in this petition for writ of prohibition that by the time of the third revocation hearing, the trial court had lost jurisdiction over him and that he should no longer be on probation. For his petition for writ of prohibition, the petitioner asserts two points:

1) The trial court erred in finding the petitioner in contempt of court after his probation period had expired;,
2) . The trial court erred in ordering the defendant to jail in excess of the statutory maximum sentence.

Propriety of Prohibition

It is essential, initially, for this court to examine whether prohibition is the appropriate remedy. We first observe that Eric Scott Pike has named the individual judge as respondent to his petition. That is incorrect. Prohibition lies to the circuit court and not to the individual judge. See Green v. Mills, 339 Ark. 200, 4 S.W.2d 493 (1999); Travelers Insur. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997); Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997); Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992). Accordingly, we will treat the petition as one against the circuit court. See Ford v. Wilson, supra.

We recently set out the requirements for a writ of prohibition:

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. 111, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will lie, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993).

State v. Circuit Court of Lincoln County, 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999). We have further held that we do not issue a writ of prohibition for something that has already been done. Holmes v. Lessenberry, 297 Ark. 23, 759 S.W.2d 37 (1988) (per curiam).

Given the order of events in the instant case, we must hold that because the court denied petitioner’s motion to dismiss and further entered judgment at 'the third revocation hearing before staying the proceedings pending the filing of this petition for writ of prohibition, a petition for writ of prohibition would not be the proper remedy. Instead, an appeal of the trial court’s final order would have been the correct remedy at law. As stated above, the writ is appropriate only when there is no other remedy, such as an appeal, available. State v. Circuit Court of Lincoln County, supra; Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, supra.

Once the trial court acted by entering the judgment at the third revocation hearing, the remedy became an appeal, not a petition for writ of prohibition. As such, we must deny petitioner’s petition for writ of prohibition.

Denied without prejudice to raise on appeal.


author: WH. “Dub” Arnold, Chief Justice. WH. “Dub” Arnold, Chief Justice. Tom Glaze, Justice, dissenting.

text:
    STATE of Arkansas v. Kenneth Andrew SULLIVAN
    CR 99-1140
    11 S.W.3d 526
    Supreme Court of Arkansas
    Opinion delivered February 10, 2000
    [Supplemental opinion on denial of rehearing issued May 18, 2000  ]

      Mark Pryor, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellant.

      P.N “Buddy” Troxell, for appellee.

       Glaze, Imber, and Smith, JJ., would grant.

   WH. “Dub” Arnold, Chief Justice.

The State brings this interlocutory appeal from the trial court’s granting of appellee’s motion to suppress evidence found in his vehicle after an officer observed him speeding. Appellee was approached by a Conway police officer, Joe Taylor, for allegedly traveling forty miles per hour in a thirty-five mile-per-hour zone on Highway 65 in Conway. Although Officer Taylor did not use his “blue lights” to require appellee to stop, appellee pulled into a service station and was then informed by Officer Taylor of the reason for the contact.

Appellee was requested by Officer Taylor to produce registration and proof of insurance. When appellee, a now-disabled, previously self-employed roofer, opened his vehicle door to locate the documents requested, Officer Taylor noticed a rusted roofing hatchet that was corroding into the carpet of the vehicle. Appellee was unable to locate his vehicle registration and proof of insurance. He was then arrested for speeding, having no vehicle registration and no proof of insurance, and carrying a weapon (the roofing hatchet), as well as having an improper tint on his windshield. Officer Taylor further deemed appellee’s vehicle to be unsafe because his speedometer was not working properly.

Aftpr another officer arrived and placed appellee in the back of his police unit, Officer Taylor began an inventory search of appellee’s automobile. Officer Taylor testified that under the armrest, he found a black bag with what appeared to be methamphetamine inside it. The bag, he claims, contained a Ziploc-type bag with ten individually-wrapped bags of the substance, twenty-seven corners of plastic bags, a small plastic container with suspected marijuana, another Ziploc-type bag with bag corners inside of it, and a plastic container with two bags of suspected methamphetamine. Officer Taylor also stated that a zippered pocket of the same black tote bag contained two bags of suspected methamphetamine, a plastic tube with white powdery residue in it, a wood-handled knife with white powdery residue on the ends, and a red metal plate and a purple plastic straw. Appellee was then charged with the following offenses: possession of methamphetamine with intent to deliver; attempt to manufacture methamphetamine; possession of drug paraphernalia; unlawful possession of a weapon, the roofing hatchet; and speeding. He was not charged with having no proof of insurance or vehicle registration.

Appellee moved to suppress evidence seized from his vehicle on the basis that the stop was a pretext to conduct a search. Upon the testimony of the sole witness at the suppression hearing, who was Officer Joe Taylor, as well as arguments of counsel, tbe trial court deliberated overnight and then granted appellee’s motion to suppress, from which the State now brings this appeal. For its only point on appeal, the State asserts that the trial court erred in granting appellee’s motion to suppress evidence found in his vehicle. We disagree with the State and affirm the trial court.

This Court, upon review of a trial court’s ruling on a motion to suppress, makes an independent determination based on the totality of the circumstances and reverses only if the trial court’s ruling is against the preponderance ' of the evidence. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998). The issue before this Court is whether the search of appellee’s vehicle was justified, either as an inventory search or as a search incident to arrest. We hold that it was not.

In the instant case, Officer Taylor was the sole witness who testified at the hearing on appellee’s motion to suppress. Although he testified on direct examination that what he conducted was merely an inventory search as dictated by policy and not a search conducted after a traffic stop predicated on suspicions he had of the appellee’s involvement in drug activity, he did admit on cross-examination that he had been assigned to the narcotics section and that said section had intelligence on the appellee of which Officer Taylor was aware. Appellee contends that the very facts and circumstances surrounding the arrest itself proves that it was pretextual in nature, in that it was made solely for the purpose of searching the appellee’s vehicle for controlled substances, and that, as a result, he is entitled to an order suppressing any and all evidence seized from his vehicle. Appellee asserts that the arresting officer had no reasonable basis to believe that the roofing hatchet was to be used as a weapon.

We have held that “pretext” is a matter of the arresting officer’s intent, which must be determined by the circumstances of the arrest. Brenk v State, 311 Ark. 570, 847 S.W.2d 1 (1993). We held in Hines v. State, 289 Ark. 50, 709 S.W.2d 65 (1986), and the Court of Appeals followed in Miller v. State, 44 Ark. App. 112, 114, 868 S.W.2d 510 (1993):

The Supreme Court has specifically held that “an arrest may not be used as a pretext to search for evidence.” United States v. Lefkowitz, 285 U.S. 452 (1932). ...
Claims of pretextual arrest raise a unique problem in law — deciding whether an ulterior motive prompted an arrest which otherwise would not have occurred. Confusion can be avoided by applying a “but for” approach, that is, would the arrest not have occurred but for the other, typically, the more serious crime. Where the police have a dual motive in making an arrest, what might be termed the covert motive may be dominant, so long as the arrest would have been carried out had the covert motive been absent. ...

The question then becomes whether appellee would have been arrested simply for traveling forty miles per hour in a thirty-five mile-per-hour zone and possessing a roofing hatchet that had clearly been in his vehicle for quite a long time, given that it was corroding into the carpet. We find that to be doubtful. His vehicle may have been impounded due to his failure to provide proof of insurance and registration. However, appellee was never charged with having no proof of insurance or vehicle registration. Further, the trial court, when assessing the credibility of Officer Taylor (the sole witness at the hearing), the totality of the circumstances, and the applicable law, agreed with appellee that the search and seizure was pretextual and should be suppressed. Clearly, a review of the applicable law illustrates that thfe issue of pretext necessarily turns on the facts in a given case, and given our standard of review in these cases, we cannot say that the trial court’s ruling was against the preponderance of the evidence:

Affirmed.

Mark Pryor, Att’y Gen., by; Brad Newman, Ass’t Att’y Gen., for appellant.

No response.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING MAY 18, 2000

WH. “Dub” Arnold, Chief Justice.

The State has petifor rehearing in this case, contending that this court’s opinion delivered on February 10, 2000, State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (200Q), contained a significant error of law. The State argues that this court’s analysis of the present case using the concept of “pretext” is contrary to the United States Supreme Court’s opinion in Whren v. United States, 517 U.S. 806 (1996). The State presents us with the Whren case for the first time on rehearing and argues that under Whren, a police officer may arrest someone for a minor traffic violation, knowing full well that the real reason for the arrest is to enable a search of the vehicle for a suspected crime.

We do not read Whren as going as far as the State would have it. In Whren, the police officers observed youthful occupants at night in a vehicle with temporary license plates. The youths were acting suspiciously in a high crime area. When the vehicle did a U-turn and sped off at an unreasonable speed, the police officers gave chase and stopped the vehicle. One of the police officers approached the vehicle and saw two bags of crack cocaine in the driver’s hands.

These facts are very different from those in the case before us. Here, the police officer stopped Sullivan for speeding, arrested him primarily because he had a roofing hatchet on the floor of his vehicle which had rusted into the carpet, and then conducted an inventory search following the arrest. As the trial court found in its ruling:

[F]ollowing our hearing yesterday, I have gone over the testimony and looked at what I believe to be the law in that case, and it’s going to be my decision in this particular instance that based on the testimony, specifically that the officer testified that he stopped the car based on a charge of suspicion of speeding — which I have no problem with the stop. I think that was ... there was radar. I don’t have any problem with that.
He testified that once he got him stopped, he recognized him as someone that he had seen intelligence on regarding narcotics, and he — rather than write citations, he physically arrested him. And the weapons charge, I think, was added to that. And I don’t believe that in this particular instance that the — that that was appropriate, and I’m going to grant the defendant’s motion to suppress the evidence seized as a result of that search.

The State argues that under Whren, the Supreme Court has determined that the ulterior motives of police officers are irrelevant so long as there is probable cause for the traffic stop. Admittedly, the decision in Whren is broadly written, but much of it is dicta. Nevertheless, we do not interpret Whren as blanket authority for pretextual arrests for purposes of a search in all cases. Rather, the reasonableness of the arrest and search must be governed by the facts of each case. For example, we do not believe that Whren goes so far as to sanction conduct where a police officer can trail a targeted vehicle with a driver merely suspected of criminal activity, wait for the driver to exceed the speed limit by one mile per hour, arrest the driver for speeding, and conduct a full-blown inventory search of the vehicle with impunity.

Several jurisdictions, after the Whren decision, have refused to give total authority to law enforcement for pretextual arrests and the resulting searches, either because of state constitutions or because the search and seizure was unreasonable. See, e.g., State v. Ladson, 979 P.2d 833 (Wash. 1999); State v. Varnado , 582 N.W.2d 886 (Minn. 1998); People v. Dickson , 690 N.Y. Sup. Ct. 2d 390, 180 Misc. 2d 113 (1998); State v. Gonzalez-Gutierrez, 927 P. 2d 776 (Ariz. 1996). Further, one jurisdiction has questioned the ultimate absurdity of whether Whren was meant to sanction arrests and searches incident to a parking violation. See State v. Holmes, 569 N.W.2d 181 (Minn. 1997).

This court has cited Whren in two cases. See Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998); Burris v. State 330 Ark. 66, 954 S.W.2d 209 (1997). Neither case dealt with the issue of pretextual arrests but rather cited Whren for the proposition that probable cause of a traffic violation is all that is required for a police officer to make a stop. In fact, in Travis, we specifically noted that the argument of a pretextual arrest had not been made. ¿

Here, the trial court found that the arrest was pretextual and made for the purpose of searching Sullivan’s vehicle for evidence of a crime. Again, we do not believe that Whren disallows this. Moreover, even if we were to interpret Whren to give full rein to law enforcement to effect pretextual arrests for traffic violations, there is nothing that prevents this court from interpreting the U.S. Constitution more broadly than the United States Supreme Court, which has the effect of providing more rights. We arguably have done so with our Criminal Rules that provide more stringent requirements for nighttime searches than Court decisions. See Ark.. R. Crim. P. 13.2(c); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991).

In sum, we will not give carte blanche approval for all pretextual arrests for traffic violations, as the State would have us do. We draw a clear distinction between arresting a person with crack cocaine in his hands as was the case in Whren and effecting a pretextual arrest for purposes of a search, such as we have in the instant case. Surely that flies in the face of reasonableness, which is the essence of the Fourth Amendment. See State v. Holmes, supra. We will decide the reasonableness of the arrest and search on a case-by-case basis, as the Whren decision makes clear. For these reasons, we deny the State’s petition for rehearing.

Denied.

Corbin, Brown, and Thornton, JJ., join.

GLAZE, Imber, and Smith, JJ., would grant rehearing.

Tom Glaze, Justice, dissenting.

The State petitioned for rehearing in this case, arguing that our decision rendered on February 10, 2000, State v. Sullivan, 340 Ark. 315, 11 S.W.3d 526 (2000), contained a significant error of law in failing to mention Whren v. United States, 517 U.S. 806 (1996). It is true that our opinion did not discuss Whren, but only because that case was neither cited nor argued to this court. I agree with the majority court that the Whren decision is significant to our reaching a correct holding in the present case; thus, our court considers it now.

As our court set out in its original opinion, the evidence was indisputable that police officer Joe Taylor made a proper stop of Kenneth Sullivan’s car because Sullivan was speeding. Sullivan also had no insurance, vehicle registration, or functional speedometer, and his car windows were improperly tinted. The officer additionally observed a hatchet on the driver’s floorboard. The officer advised Sullivan that he was being placed under arrest for these infractions and for driving an unsafe car. He put Sullivan in the back of another officer’s car and began inventorying Sullivan’s vehicle. In the search, the officer found methamphetamine and marijuana. In making the inventory search, Taylor testified that he followed his department’s policy and procedural manual. In these circumstances, Officer Taylor had probable cause to believe Sullivan committed a traffic offense at the time of the stop. That valid stop resulted in the discovery of other violations of the law that permitted Taylor to arrest Sullivan and .inventory his car, where the officer found illegal drugs.

Recently, in Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998), our court upheld the stop of a defendant’s truck for committing a traffic offense — failing to display expiration-date stickers. After the stop, the officer discovered that the driver of the truck had a suspended driver’s license, and the passenger, defendant, was a felon who also had no valid license. The officer had the truck towed. When the officer later opened the door of the truck, he found a rifle which led to the defendant’s arrest for being a felon in possession of a firearm. At trial, the defendant argued that no probable cause existed for the officer to stop his truck because the officer wrongly believed the Texas license plate was required to display an expiration sticker. Citing Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997), and Whren v. United States, 517 U.S. 806 (1996), the Travis court rejected the defendant’s argument and upheld the search of defendant’s truck, holding that it is wefl settled that an officer may stop and detain a motorist where the officer has probable cause to befieve a traffic violation had occurred. Furthermore, in reaching its decision, the Travis court repeated the rule in Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997), that, in assessing the existence of probable cause, our review is liberal rather than strict. To the same effect, see Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). In the present case, once the officer made a valid stop and arrested Sullivan for the numerous traffic violations, including driving an unsafe vehicle, the officer had the authority to perform an inventory of Sullivan’s vehicle.

It has been suggested that the State’s argument on rehearing is that a poEce officer may arrest someone for a minor traffic violation, knowing fuE weE that the real reason for the arrest is to enable a search of the vehicle for a suspected crime. To the contrary, the State set out its contention as foEows:

The relevant inquiry, thus, is 'not whether the officer* had an ulterior motive for stopping the vehicle, but whether the officer had probable cause to believe that the defendant was committing a traffic offense at the time of the initial stop. Travis, supra; Burris, supra. Based on his radar detection of [Sullivan’s] speed, the officer here unquestionably had probable cause to stop [Sullivan], This Court, thus, applied the wrong standard when it decided this case based on its view that the officer stopped appellee based on an ulterior motive. Even if the officer had an ulterior motive, which the State does not admit, it is not to be taken into account by this Court, according to Whren, because the stop was unquestionably proper. The Court should grant rehearing to consider this case in the light of Whren, Travis, and Burris.

It has been further suggested that Officer Taylor had arrested SuEivan primarily because he had a roofing hatchet in the floor of his vehicle; however, even if the trial court believed this to be true, Taylor stiE had probable cause to detain and arrest SuEivan for the numerous traffic offenses he had committed. It appears that the judge got off track by injecting his personal view as to whether a hatchet could be a weapon for which he could be arrested for possession. The judge mused, “I’ve got a hammer under the seat of my car today. Am I subject to being arrested and taken physically into custody because I have a hammer?” With all due respect to the trial judge, the issue, as stated above, is not whether the hatchet, alone, was cause for an arrest after the stop, but whether Sullivan had committed traffic violations in Officer Taylor’s presence. Unquestionably, such violations occurred.

In sum, because Sullivan was speeding, had no insurance or vehicle registration, a non-working speedometer, illegally tinted windows, and an unsafe vehicle, the officer had the right to place (and did place) Sullivan under arrest. Sullivan’s arrest was valid under Ark. R. Crim. P. 4.1 (a)(iii) (1999), which states that “a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed . . . any violation of the law in the officer’s presence.” (Emphasis added.) Pursuant to this rule, a law enforcement officer is authorized to arrest a person for minor traffic violations witnessed by the officer, such as speeding. See State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998); Hazelwood v. State, 328 Ark. 602, 945 S.W.2d 365 (1997). The officer’s arrest of Sullivan was, therefore, valid. These violations being found also allowed Taylor to make an inventory search that quickly led to the discovery of illegal drugs. See Ark. R. Crim. P. 12.6(b) (1999) (a vehicle impounded in consequence of any arrest, or retained in official custody for other cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents). The trial court did not find, nor did Sullivan prove, that the inventory search was conducted in bad faith for the sole purpose of collecting evidence.

The majority opinion on rehearing hypothecates that the Supreme Court’s Whren case does not go so far as to sanction conduct where a police can trail a targeted vehicle with a driver merely suspected of criminal activity, wait for the driver to exceed the speed limit by one mile per hour, arrest the driver for speeding, and conduct a full-blown inventory search of the vehicle with impunity. Of course, I agree Whren does not allow such a stop and search, but those are not the facts before this court. It is uncontroverted that, at the time of the stop, Officer Taylor did not know the driver was Sullivan. Once again, even the trial court found no pretextual stop, and ruled the stop valid. Under the circumstances of this case, Sullivan’s criminal record simply cannot be utilized to his advantage at the time of his stop and arrest.

The majority court validates the stop in this case, but finds Sullivan’s arrest pretextual. Again, Sullivan’s violation of numerous traffic offenses justified his arrest, and I am unaware of any rule or law that requires an officer merely to issue citations in a traffic stop where numerous violations occurred. Furthermore, I find nothing in the record that the officer could not arrest the violator. While it is true that Officer Taylor, after the stop, recognized Sullivan as a person who had been involved in illegal drugs, surely this fact should not be employed by our court to hold Sullivan’s arrest invalid. Labeling Sullivan’s arrest illegal when so many other violations justified it fads to comport with the law.

In fact, Supreme Court jurisprudence dictates a contrary result. In United States v. Villamonte-Marquez, 462 U.S. 579 (1983), the court dismissed the argument that an ulterior motive might strip law enforcement officers of their legal justification to undertake a search. The Court likewise held that a traffic-violation arrest would not be rendered invalid by the fact that it was “a mere pretext for a narcotics search.” United States v. Robinson, 414 U.S. 218 (1973). Summarizing these and other cases in Whren, Justice Scalia wrote, “[w]e think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” Whren, 517 U.S. at 813.

For the above reasons, I would hold that the trial court erred and would overturn its ruling. The majority court’s failure to do so will generate considerable confusion among the rank and file of law enforcement, the bench, and the bar alike. Its decision is unquestionably a departure from search and seizure law as the Supreme Court has heretofore defined it.

IMBER and SMITH, JJ., join this dissenting opinion.

       The State also failed to cite or argue Arkansas cases Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998), or Burris v. State, 330 Ark. 66, 954 S.W.2d 209 (1997). However, the Travis, Burris, and Whren cases are relevant to the search, seizure, and arrest issues raised at trial and on appeal and require this court to consider them