author: Per Curiam.

text:
    In Re: Counsel's Failure to File Timely Briefs in Criminal Appeals
    635 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered June 28, 1982

      Ron Heller, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

In Rector v. State, No. CR 82-36, the appellant’s brief was not filed when due. His attorney, Ron Heller, obtained two extensions of time and in each instance failed to file the brief. A third request for an extension was denied, for want of any showing of good cause.

Mr. Heller has now filed another motion, stating that he has not been properly diligent, admitting that the complete fault is his, and asking that the court allow the brief to be filed out of time. To deny this motion would as a practical matter establish ineffective assistance of counsel. In accordance with our practice in the corresponding situation when the record is not filed on time owing to the fault of counsel, see Per Curiam order of February 5, 1979, 265 Ark. 964, we shall in this case and similar later cases permit the brief to be filed, publish a per curiam order giving the name of the lawyer, and send a copy to the Committee on Professional Conduct, to be kept in its files for the Committee’s information if a complaint of any kind should later be filed against that lawyer.


source: Caselaw Access Project

license: Public Domain

text:
    Tonnie BROWN v. STATE of Arkansas
    635 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered June 28, 1982

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Tonnie Brown, by his attorney, has filed for a rule on the clerk.

His attorney, Deborah R. Sailings, admits that the record was tendered late due to a mistake on her 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:
    Richard POWELL v. STATE of Arkansas
    635 S.W.2d 264
    Supreme Court of Arkansas
    Opinion delivered June 28, 1982

      Paul D. McNeill, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Richard Powell, by his attorney, has filed for a rule on the clerk.

His attorney, Paul D. McNeil, admits that the record was tendered late 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.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice,

text:
    Leardis SMITH v. William F. EVERETT, Director of Labor, and ODUS PACK CARPET SALES
    82-69
    637 S.W.2d 537
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      Katherine D. Ehrenberg of Central Arkansas Legal Services, and James R. Cromwell of UALR Law School Legal Clinic, for petitioner.

      Thelma Lorenzo and Bruce H. Bokony, for respondents.
   Richard B. Adkisson, Chief Justice.

The Employment Security Division denied unemployment benefits to petitioner, Leardis Smith, after finding that he was discharged for dishonesty. After a hearing on the issue the Appeals Tribunal reversed, based on an affidavit of a customer submitted by the employer and the testimony of petitioner and two character witnesses. The Board of Review then reversed the Appeals Tribunal and denied unemployment benefits, basing its decision on a review of the record and an additional affidavit submitted by the employer. The Court of Appeals affirmed. Smith v. Everett, Director of Labor, et al., 4 Ark. App. 197, 629 S.W.2d 309 (1982). We granted certiorari to review the legal basis of the Court of Appeals’ decision in affirming the Board of Review.

Petitioner first argues that the Board of Review's denial of benefits was not supported by substantial evidence because the only direct evidence proving that petitioner was dishonest was by affidavit. Petitioner relies on Woods v. Daniels, 269 Ark. 613, 599 S.W.2d 435 (Ark. App. 1980) which held that hearsay alone was not substantial evidence. However, the Woods decision is contrary to the decision of this Court in Bockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S.W.2d 826 (1958), where we held thatalthough the evidence consists of affidavits and certified copies of other decisions it was nevertheless competent and constituted substantial evidence to support the Board’s findings. To the same effect see Richardson v. Perales, 402 U.S. 389 (1971).

Petitioner next argues for reversal that he was denied due process of law because he did not have the opportunity to subpoena or to cross-examine adverse witnesses. Ark. Stat. Ann. § 81-1107 (d) (4) (Repl. 1976) sets out the manner in which proceedings before the Appeals Tribunal and Board of Review shall be conducted:

(4) Procedure. The Board of Review, appeal tribunals and special examiners shall not be bound by common law or statutory rules of evidence or by technical rules of procedure, but any hearing or appeal before such tribunals shall be conducted in such manner as to ascertain the substantial rights of the parties. . ..

The United States Supreme Court, in interpreting the rights of an individual in adjudicatory administrative proceedings, has held that before state granted benefits (welfare) can be taken away the claimant must be given an opportunity to confront and cross-examine adverse witnesses at an evidentiary hearing. Goldberg v. Kelly, 397 U.S. 254 (1970). See also Hannah v. Larche, 363 U.S. 420 (1960) and Richardson v. Perales, supra.

Here, petitioner had no opportunity to subpoena and cross-examine adverse witnesses either at the hearing before the Appeals Tribunal or at the proceeding before the Board of Review. Although the notice informing him of the hearing date before the Appeals Tribunal stated that upon his request witnesses could be subpoenaed, at that time he did not know who the adverse witnesses would be. Petitioner did know who the adverse witnesses were by the time his case was reviewed by the Board of Review; however, he was informed by the Board that a second hearing would not be held and that only affidavits could be submitted.

It is clear that petitioner has not had an opportunity to subpoena and cross-examine witnesses as required by the above cited cases setting forth the minimum requirements for due process of law. Therefore, we reverse the Court of Appeals and remand to the Board of Review for a hearing consistent with this opinion pursuant to Ark. Stat. Ann. § 81-1107 (d) (7) (Repl. 1976).

Reversed and remanded.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree with the result reached in this case because of the peculiar facts involved. Leardis Smith was accused of dishonesty by his employer and the officer who actually heard the testimony found that the proof was insufficient to prove that dishonesty. Smith’s employer only submitted an affidavit. He did not appear. The Board of Review asked for more evidence and at this hearing another affidavit was submitted by the man who allegedly made the dishonest transaction with Smith. So we have a situation where a man is accused of being dishonest and never has the opportunity of confronting his accuser. Certainly I believe that any administrative agency should be able to consider hearsay, but in this case that rule breaks down and denies Smith a meaningful hearing granted by the due process clause of the United States Constitution. I would point out that one of the problems in review of administrative cases such as this is that the Board of Review is a fact finding agency but they rarely hear witnesses. They simply review the record. In this case it was their role to decide the credibility of the witnesses and they never heard any witnesses. On the basis of affidavits alone they decided Smith lied and was dishonest.


author: Richard B. Adkisson, Chief Justice.

text:
    James Dean WALKER v. STATE of Arkansas
    CR 82-22
    637 S.W.2d 528
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      Lessenberry it Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

After a trial by jury appellant, James Dean Walker, was convicted of felony escape and sentenced to two years in the Arkansas Department of Correction, with the sentence to run consecutively to any sentence then being served. On appeal from this conviction the only issue is whether the trial court erred in instructing the jury pursuant to AMCI 6004, the instruction for deadlocked juries. We affirm.

The jury was given the case on the afternoon of October 19, 1981, but had still not reached a verdict after approximately four hours of deliberation. At that time the court asked the foreman how the jury stood in its voting. The foreman responded that it was nine to three. The court then gave the jury an instruction commonly known as the "Allen charge” which is essentially set out in AMCI 6004. In giving the instruction the court added the sentence emphasized below to the AMCI version:

It is to the interest of the State of Arkansas and of the defendant(s) for you to reach an agreement in this case, if at all possible. A hung jury means a continuation of the case and a delay in the administration of justice. And it also means additional expense on the taxpayers.
You should consider that this case will have to be decided by some jury and, in all probability, upon the same testimony and evidence. It is unlikely that the case will ever be submitted to 12 people more intelligent, more impartial, or more competent to decide it. ...

The instruction then goes on to tell the jury that they should weigh and discuss the evidence and make every reasonable effort to harmonize individual views on the merits of the case. It also states that no juror should surrender his sincere convictions to reach a verdict and that the verdict should be the result of each juror’s free and voluntary opinion, but that every sincere effort should be made to reach a proper verdict. After hearing this instruction the jury continued their deliberation but were unable to reach a verdict until the next morning.

Appellant objects to the sentence added by the court for two reasons: (1) the sentence is extraneous to issues of guilt or innocence or punishment; and (2) modification of the instruction should not have been made without the trial judge setting out in writing the reason for not giving the AMCI version.

In regard to instructing the jury on extraneous matter we held in Evans v. State, 252 Ark. 335, 478 S.W.2d 874 (1972) that:

An admonition to the jury as to its duty to return a verdict, without any expression of the court’s opinion as to the weight of the evidence, or any change in instructions previously given, or suggestion that any juror yield his individual convictions to reach a verdict is not improper.

In Graham v. State, 202 Ark. 981, 154 S.W.2d 584 (1941) this Court committed to the general rule that the trial court may detail to the jury the ills attendant upon a disagreement, including the expense. See also McGaha v. State, 216 Ark. 165, 224 S.W.2d 534 (1949).

In answering appellant’s second objection, we quote the “Note on Use” which follows AMCI 6004:

This instruction should not be given until the jury, after prolonged deliberation, has not reached a verdict. The trial judge may wish to give this type of instruction in his own words. The above is submitted as a guide to avoid errors sometimes made.

Because of the language in the note which invites the trial judge to use other language, it was not error to detail to the jury that necessary expense is involved in a subsequent trial, particularly where bur cases have approved such language.

Appellant also argues that the portion of the instruction which informs the jury that the case will have to be decided by some jury should not have been given because such a statement is legally inaccurate. Appellant points out that a jury may never decide the case because if there is a mistrial, the State has the authority to request dismissal of the action.

Although technically appellant is correct, it was not error for this language to be included in the instruction. There is always a possibility that a particular case will never be decided by a jury for any number of reasons, i.e., death of the defendant. But, as a practical matter, in most instances some jury will have to decide the case. Also, the statement itself does not encourage the jury to find the accused guilty; therefore, appellant cannot show any resulting prejudice from the language in the instruction.

Affirmed.


author: George Rose Smith, Justice.

text:
    Don PARKER v. Ronnie BRUSH and Eddie POLK
    82-71
    637 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      Cliff Jackson, P.A., for appellant.

      Gary Eubanks ir Associates, by: Darrell E. Baker and Hugh F. Spinks, for appellee Brush.

      William H. Hodge, for appellee Polk.
   George Rose Smith, Justice.

Ronnie Brush, 21, brought this action for malicious prosecution against Don Parker, because Parker had wrongfully had Ronnie arrested for failing to surrender possession of rented land after having been served with a 10-day notice to vacate. Ark. Stat. Ann. § 50-523 (Repl. 1971). This appeal is from a verdict and judgment awarding Ronnie $5,000 as compensatory damages and $7,500 as punitive damages. For reversal Parker contends primarily that he had probable cause for the prosecution and that the damages are excessive. Our jurisdiction is under Rule 29 (1) (o).

In September, 1979, Parker bought a small trailer park from the other appellee, Eddie Polk, whom Parker brought into the case as a third party defendant. At the time of the sale Ronnie Brush was occupying a trailer on a trailer space in the park and had paid his rent on the space for about a month in advance. Polk, however, had forgotten to make a record of one of Ronnie’s rental payments and erroneously informed Parker, the purchaser, that Ronnie was delinquent on his rent.

When Parker tried to collect past-due rent from Ronnie after Parker bought the trailer park, Ronnie insisted that his rent was paid and offered to show Parker three canceled checks as proof. Parker refused to look at the checks and instead made telephone calls to Polk and had other conversations with Ronnie, trying to learn the facts. Finally Parker accepted Polk’s statements that the rent was overdue and served Ronnie with a notice to quit. When Ronnie failed to remove his trailer by the tenth day Parker went to the prosecuting attorney’s office and obtained a warrant for Ronnie’s arrest. That warrant was never served.

After Ronnie had removed his trailer, Parker moved his own trailer onto the space and found that the sewer line serving the space was broken and clogged. Parker concluded that Ronnie had damaged the sewer, and for that reason he obtained a second warrant and had Ronnie arrested. The prosecution resulted in an acquittal, because Polk realized his mistake when he was shown the canceled checks.

Parker first contends that according to the undisputed evidence he had probable cause for prosecuting Ronnie and was therefore entitled to a directed verdict. The trouble is, probable cause must be based upon the existence of facts or credible information that would induce a person of ordinary caution to believe the accused to be guilty. Malvern Brick & Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Ordinary caution is a standard of reasonableness, which presents an issue for the jury when the proof is in dispute or subject to different interpretations. Here it was for the jury to say whether Parker acted with reasonable caution in accepting Polk’s disputed statements as to the truth, instead of taking further steps to get to the bottom of the dispute between Polk and Ronnie. The jury’s verdict has settled that issue, against Parker.

It is also argued that the deputy prosecutor’s decision to issue a warrant for Ronnie’s arrest is a complete defense to this action. On the evidence, however, which we need not detail, the jury could have found either that Parker did not impartially state all the facts to the deputy or that he did not honestly and in good faith act upon the advice given, being motivated instead by his belief that Ronnie had damaged the sewer line. On this point see Oldham v. State, 201 Ark. 903, 147 S.W.2d 361 (1941).

As to the damages, Ronnie was arrested and taken to jail, was booked, photographed, and fingerprinted, and had to remain at the jail for two hours while his wife raised money for his release on bond. He was subjected to a criminal trial, with legal expenses of $200. The awards, even if they cannot be described as modest after a long period of inflation, certainly do not shock the conscience of the court.

Lastly, Parker filed a third party complaint against Polk, seeking not contribution as between joint tortfeasors but complete indemnity for any judgment that Ronnie might obtain against Parker. It is now argued that the trial court should have submitted this indemnity theory to the jury. The only authority cited for this novel argument is Larson Machine v. Wallace, 268 Ark. 192, 212-215, 600 S.W.2d 1 (1980). There we held, among other things, that before a person can maintain an action for indemnity, there must be some special relationship between the parties, which did not exist when this claim arose, and that the claimant must have suffered an actual loss, which Parker had not suffered when this case went to the jury. We do not regard the present argument as warranting further discussion. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Affirmed.


author: Frank Holt, Justice.

text:
    Robert Earl LARK v. STATE of Arkansas
    CR 82-79
    637 S.W.2d 529
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      John H. Bradley, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

On February 27, 1981, appellant was arrested upon the filing of two petitions for the revocation of his suspended sentences. On March 11, 1981, while still incarcerated, the appellant filed a petition for a mental examination at the local mental health center. On March 31, 1981, the court determined and ordered that appellant be transferred from the county jail to this facility, which found him incapable to stand trial and recommended that he be committed to the state hospital in Little Rock at the earliest possible time. On April 14, 1981, the trial court ordered that the appellant be committed to the state hospital for treatment until he was fit to proceed with the revocation hearing. On June 2,1981, a letter from the state hospital was filed with the court advising that the appellant was competent to stand trial. On June 11,1981, he was returned to the jurisdiction of the trial court where he remained incarcerated until his revocation hearing on July 20, 1981. At the hearing the appellant filed a motion to dismiss the revocation petitions, because they were not heard within 60 days as required by Ark. Stat. Ann. § 41-1209 (2) (Repl. 1977). The court postponed the hearing until August 25, 1981, because the appellant had not been properly served with the petitions. However, upon the state refiling the petitions and complying with the requirements of personal service, a hearing was conducted on July 22, 1981. Thereupon, the court revoked appellant’s suspended sentences. Hence this appeal.

The appellant asserts that the trial court erred in dismissing his motion to dismiss the revocation petitions because, excluding the period of delay caused by his mental examinations, they were not heard within 60 days. Section 41-1209 (2) provides in pertinent part:

A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted... within a reasonable period of time, not to exceed sixty days, after the defendant’s arrest....

In Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978), we said that the 60 day limitation, although not jurisdictional, “represents the period beyond which the hearing cannot be delayed if the defendant objects.” Here, the defendant objected to the hearing. We have held that the 60 day limitation begins to run from the date of a defendant’s arrest for the alleged violation of the terms of his suspended sentence. Walker v. State, 262 Ark. 215, 555 S.W.2d 228 (1977); Blake v. State, 262 Ark. 301, 556 S.W.2d 427 (1977); Lincoln v. State, 262 Ark. 511, 558 S.W.2d 146 (1977); and Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).

Neither party disputes that the period the appellant underwent mental examinations and evaluation is excluded. However, the question arises whether the 60 day period should be tolled when the defendant petitioned for a mental examination on March 11, 1981, or was not tolled until March 31,1981, when a determination was made by the court on the petitions’ merits and the examination was ordered. Also, the question is posed whether the excludable period should end when the appellant was pronounced fit to stand trial and the state was so notified on June 2,1981, or when he was returned to the jurisdiction of the court on June 11, 1981.

We find no authority nor is any cited to us which is controlling when, as here, there is an excludable period of time to the 60 day limitation resulting from a mental examination. It appears that the underlying purposes of the 60 day limitation and the speedy trial rules, A. R. Cr. P. Rule 28, are somewhat similar. We have said that the underlying purpose of the 60 day limitation “is to assure the defendant is not detained in jail for an unreasonable time awaiting his revocation hearing . ” Boone v. State, supra. Here, the appellant was incarcerated from the time of arrest until his revocation hearing. We think it fair to look to the provisions contained in Rule 28 for guidance in computing excludable periods. Rule 28.3 (a) provides that the period of delay resulting from an examination and hearing on the competency of a defendant to stand trial, as well as the period of time he is incompetent to stand trial, is excluded. Here, as indicated, that period of time is unquestioned. Additionally, Rule 28.3 (c) provides that a period of delay is excludable when a continuance is granted at a defendant’s request and the period of delay shall be or run from the day the continuance is granted. It is unquestioned that the 60 day period began to run upon appellant’s arrest February 27, 1981. Applying by analogy the recited speedy trial Rule 28 and the rationale in Boone v. State, supra, to the facts here, we hold that the excluded period began to run on March 31, 1981, when the court found that the appellant should undergo psychiatric evaluation and granted his petition. The period from February 27, the date of arrest, to March 31, is computed as being 32 days. See A. R. Cr. P. Rule 1.4. We need not determine if the excludable period ended June 2 or June 11 since by either computation there was ample time within the 60 days to conduct a revocation hearing. From June 2 to July 20 is 47 days or a total of 79 days (32 + 47) and from June 11 to July 20 is 38 days or a total of 70 days (32 + 38). Thus the appellant, who was incarcerated from the date of his arrest, did not receive a hearing within the required 60 days.

Since we find merit in this contention, we need not address appellant’s other points relied upon for reversal.

Reversed and dismissed.


author: John I. Purtle, Justice.

text:
    Norma Jean ROWELL et al v. Alvin AUSTIN et al
    82-78
    637 S.W.2d 531
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      Wallace, Hilburn, Clayton, Calhoon ir Forster, Ltd., by: Sam Hilburn and Joseph H. Purvis, for appellants.

      Givens ir Buzbee, by: Art Givens, for appellees.
   John I. Purtle, Justice.

The Pulaski County Circuit Court reversed the Alcoholic Beverage Control Board’s decision granting on-premise permits for the appellants. The trial court remanded the case to the ABC with directions to construe Ark. Stat. Ann. § 48-345 (Repl. 1977) in a manner to prevent the board from approving on-premise permits for the appellants. Appellants argue on appeal that the trial court erred in basing its decision on Ark. Stat. Ann. § 48-345 and ABC regulation 1.32 (6) (a) and further argue that the decision of the board was supported by substantial evidence. We agree with the appellants that the trial court erred in its order directing the board to reverse its prior decision.

On December 19, 1980, the appellants applied for permits to sell on premises alcoholic beverages at an establishment known as Shorty Small’s Bar & Grill. Shorty Small’s fronts onto Rodney Parham Road and on the property just to the east, across Shackleford Road, lies the Pleasant Valley Church of Christ, also abutting on Rodney Parham Road. Shackleford Road is 43 feet wide at this pohit.

On April 15, 1981, the on premises consumption permits were granted. On May 13,1981, the appellees filed a petition in Pulaski Circuit Court seeking a review of the final order of the ABC Board. Judgment was rendered by the circuit court on September 1, 1981, without considering anything except the record submitted before the ABC Board involving the hearing concerning these permits. A remand order was issued by the court stating in effect the matter was being returned to the board for a determination of Ark. Stat. Ann. § 48-345 and ABC regulation 1.32 in accordance with the construction given by the court. No specific instructions were included in the order. The appellants appeal from this order. On October 30, 1981, the appellants filed notice of appeal to the Arkansas Court of Appeals. The appellees filed a motion, January 8, 1982, to dismiss the appellants’ appeal stating such appeal was untimely. After a response by the appellants the Arkansas Court of Appeals denied appellees’ motion to dismiss. The Court of Appeals subsequently certified the case to us pursuant to Rule 29.

The facts in this case are not in issue. There is no dispute about the type of permits which appellants sought and were granted. During oral arguments both parties agreed that ABC regulation section 1.32 (6) is the regulation controlling the subject of this dispute. This regulation reads as follows:

“Permit not to be issued to premises which is less than 200 yards from church or schoolhouse. No permit for the sale of alcoholic beverages shall be issued, nor shall any existing permit be transferred, to any location within two hundred (200) yards of any church or schoolhouse. However, since the intent of this regulation is to provide protection to churches and schools and to insulate them from alcoholic beverage outlets, the Alcoholic Beverage Control Department may issue permits, with the exception of retail liquor permits, within two hundred (200) yards of a church or schoolhouse upon receipt of a written waiver from managing officials of any church or school which is situated within the above area of prohibition. In determining such distance, the measurement shall be made from the main entrance of the church or schoolhouse to the main entrance of the building of the premises sought to be permitted, measured by the shortest public thoroughfare. (Emphasis supplied.)”

It was not argued in the circuit court nor before the board that this regulation was unconstitutional. Therefore, the question relating to this regulation is simply one of construction. The ABC Board has been granted regulatory power by the Arkansas General Assembly. The critical language in this regulation is the last sentence which provides that the distance shall be measured from the main entrance of the church or schoolhouse to the main entrance of the building which houses the premises under consideration for a permit. It further states that the distance shall be measured by the shortest public thoroughfare. In the present case the appellants have designated their south door, the one farthest from the church, as their main entrance, having closed an entrance on the east end of the building. The parties agreed that the distance from this southern entrance traversing the area of the nearest thoroughfare to the main entrance of the existing church building was 648 feet. Therefore, the distance is beyond that required by the regulation.

In the case of Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979), we considered Ark. Stat. Ann. § 48-309 (Repl. 1977) and held that it defined the retail liquor business as used in relation to churches and schools. We quoted Ark. Stat. Ann. § 48-309 which is headed “Retailers permit,” the concluding sentence of which states, “All such sales shall be in unbroken packages and the same shall not be opened or the contents or any part consumed on the premises where purchased.” We now affirm the definition of the retail liquor permit as we determined it to be in Jones v. Reed.

The language of Ark. Stat. Ann. § 48-345 is obviously applicable to the retail liquor business and complements Ark. Stat. Ann. § 48-309. When the two statutes are read together it is obvious that the legislature intended to prevent retail “package” stores from operating within 200 yards of a school or church building.

The authority for all types of sales of alcoholic beverages is derived from “The Arkansas Alcoholic Control Act” (Act 108 of 1935, as amended, codified at Ark. Stat. Ann. § 48-101 et seq. [Repl. 1977]). This statute defines the terms used in the rules and regulations concerning alcoholic beverages. The enforcement of the provisions of the act were left to the Department of Alcoholic Beverage control (then Commissioner of Revenues). Ark. Stat. Ann. § 48-203 (Repl. 1977) is the statute granting the powers, functions and duties of the department. The first grant is to allow them to grant and revoke for cause permits issued under the provision of the acts. The third grant gives the commission the power to adopt rules and regulations for the supervision and control of the manufacture and sale of alcoholic beverages (except wine) throughout the state so long as such rules and regulations are consistent with the law. Pursuant to this authority the board enacted section 1.32 (6) of their regulations. As previously stated, this provision simply provides that the measurements shall be made between the main entrance of the church and the main entrance of the bar by the shortest public thoroughfare. Under this definition the distance is 648 feet.

Review of decisions by the Alcoholic Beverage Control Board is governed by Ark. Stat. Ann. § 5-713 (Supp. 1981). The circuit court reviews the record established by the board in making its decision. The court is empowered to take testimony in the event of alleged irregularities and may hear oral arguments and receive written briefs. However, in the present case the matter was considered upon remand without additional evidence. The court must either affirm the decision of the agency or remand the case for further proceedings. The court is allowed to reverse or modify the decision if it is found that substantial rights of the petitioner have been prejudiced because of administrative actions. The grounds for such action by the trial court are if the board decision is: (1) in violation of constitutional or statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedures; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by abuse of discretion. Apparently, the trial court thought the order of the board violated the first provision enumerated above. We do not agree. A proper administrative regulation has the same force and effect as a statute enacted by the legislature and is considered valid. The words in such regulations are given their plain and ordinary meaning unless there is ambiguity. Marion County Rural School District No. 1 v. Polk, 268 Ark. 354, 596 S.W.2d 700 (1980). The Administrative Procedures Act provides for judicial review of adjudications by boards and commissions. We have previously stated that in a review of the actions of administrative boards or agencies the circuit court is limited to whether there was substantial evidence to support the action taken and our review upon appeal is similarly limited. Bank of Yellville v. First American S & L Ass’n., 276 Ark. 292, 634 S.W.2d 122 (1982). We think there is substantial evidence to support the decision of the board, and there is substantial evidence to support its decision on appeal. Therefore, the case is remanded with instructions for the trial court to withdraw its order directing the board to reconsider this matter and to enter an order affirming the action taken by the board.

Reversed and remanded.


text:
    Patricia Ann TILLOTSON v. FARMERS INSURANCE COMPANY et al
    82-126
    637 S.W.2d 541
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      Cliff Jackson, P.A., for appellant.

      Bailey, Trimble, Pence & Sellars, by: R. Eugene Bailey and Rick Sellars, for appellee.
   John I. Purtle, Justice.

An automobile driven by appellant Tillotson was involved in an accident with a vehicle driven by Mayhew, one of the appellees. The occurrence was on July 9, 1978, and appellant subsequently filed a suit for damages which is not involved in this appeal. On February 13, 1981, the insurance carrier for appellee Mayhew, Farmers Insurance Company, filed a complaint for declaratory judgment in the Second Division of the Pulaski County Circuit Court. The complaint for declaratory judgment named Donnie Edmond Mayhew, Patricia Ann Tillotson, Robert N. Cox and Janeil Cox, his wife, d/b/a Cox Fixture & Supply Company, and Maryland Casualty Company as defendants. On August 31, 1981, Tillotson filed a motion for summary judgment in which she sought a declaration that Farmers Insurance Group and Maryland Casualty Company be jointly declared to afford automobile liability coverage on the vehicle which Mayhew was driving on the date of the accident. On September 15, 1981, defendant Mayhew filed a motion for summary judgment. On September 15,1981, a hearing was held on the various motions for summary judgments. The trial judge issued an order which was filed on September 16, 1981. The court found that the vehicle driven by Mayhew was furnished for his business use all the time and that on some occasions he used it for personal use. The court held that Mayhew fell under the omnibus clause of the policy provided by his employer and was therefore covered under the liability policy issued by Maryland Casualty Company. The court reaffirmed its ruling that the coverage of May-hew’s private vehicle carrier, Farmers Insurance Company, did not extend to the vehicle he was driving at the time of the accident. The result of the judgment was that Maryland Casualty, Cox's liability carrier, had coverage for liability on the vehicle Mayhew was driving and Farmers Insurance, Mayhew’s personal insurance carrier, was not responsible for coverage for this occurrence. Appellant appeals from the foregoing decision. She argues three grounds for reversal in her appeal: (1) the trial court erred in not dismissing the motions for summary judgment filed within ten days of the hearing on the motions; (2) the trial court erred in refusing to grant appellant’s motion for summary judgment; and (3) the trial court erred in granting the motion for summary judgment on behalf of Farmers Insurance. We agree with appellant that Farmers Insurance should not have been granted a summary judgment.

The facts in this case reveal that Tillotson was driving her vehicle in Faulkner County, Arkansas, when a van driven by Mayhew allegedly crossed the center line causing an accident resulting in severe injuries and damages to appellant. It was undisputed that Mayhew had possession of the vehicle he was driving at all times. It was owned by Cox and furnished to him for his regular use in Cox’s business. He was allowed to take the vehicle home at nights and on weekends. At the time of the occurrence in question he was driving the vehicle on a personal errand. The evidence before the court revealed that Mayhew used the Cox vehicle for personal business no more than once a week and possibly as infrequently as once a month. Tillotson filed suit against Mayhew for her damages on October 31, 1979. Robert N. Cox and Janeil Cox, his wife, d/b/a Cox Fixture & Supply Company, were named as additional defendants. We shall refer to them as Cox throughout this opinion. That suit is not involved in the present appeal. It has been put on the back burner, pending resolution of the complaint for declaratory judgment and motions for summary judgments. Farmers Insurance Company filed a complaint for declaratory judgment on February 13, 1981. In the complaint for declaratory judgment Farmers admitted they insured May-hew’s personal vehicle, which was not involved in the accident. They further alleged that Maryland Casualty Insurance Company afforded liability coverage to Cox and that because Mayhew drove the vehicle frequently and regularly the Farmers’ policy did not apply and Maryland Casualty was the only insurance carrier for Mayhew at the time of the accident. On August 31, 1981, appellant filed a motion for summary judgment. Various other motions for summary judgment were filed shortly before the hearing on appellant’s motion on September 15, 1981. All of the motions for summary judgment were denied except that of Farmers which was granted. Some of the motions were not filed until less than ten days before the hearing was set on appellant’s motion.

In view of the decision reached in this case we do not find it necessary to discuss the timeliness of the filing of the motions for summary judgment on behalf of the various parties. This appeal involves only the granting of the summary judgment to Farmers. An order granting a motion for summary judgment is an appealable order. Widmer v. Fort Smith Vehicle & Machinery Corp., 244 Ark. 971, 429 S.W.2d 63 (1968). It is true that appellant’s motion for summary judgment was denied and that the denial of the motion for summary judgment is not an appealable order. Henslee v. Kennedy, 262 Ark. 198, 555 S.W.2d 937 (1977). In view of the fact that appellant was named as a defendant in the suit for declaratory j udgment filed by Farmers Insurance she is entitled to appeal the order granting the summary judgment. At the same hearing on September 15, 1981, the court granted appellant’s motion for summary judgment against Maryland Casualty. The appellant is satisfied with that result and does not appeal from it.

This dispute involves the policy of insurance issued to Mayhew. It appears to be a standard automobile liability insurance policy with stated limits for each coverage including bodily injury and property damage. It is admitted that the policy was in effect at the time of the occurrence here in question. The insuring clause states that the carrier will

. . . pay all damages the insured becomes legally obligated to pay because of: (A) bodily injury to any person, and/or (B) damage to property arising out of the ownership, maintenance or use, including loading or unloading, of the described automobile or a non-owned automobile. (Emphasis supplied.)

Under the definition portion of the policy a non-owned automobile is described as follows:

Non-Owned Automobile means an automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substitute automobile.

It is clear that the insuring provision of the policy included a non-owned automobile. The vehicle Mayhew was driving was a non-owned automobile. We must now determine whether the non-owned automobile is excluded under the definition portion of the policy. A non-owned automobile is not excluded from the policy except if it is used regularly and frequently by the insured. Therefore, the definition clause requires a detrmination of whether this particular non-owned automobile was regularly or frequently used by the named insured. It is obvious that he regularly and frequently used the automobile in going to and coming from work and while on the job. However, such use is not involved in this particular occurrence. Mayhew was using the van for his own personal use, and the record reveals he made such use of the automobile from one to four times per month. We think the personal usage of the automobile is separate and distinct from the job-related use of the vehicle.

In the case of The Travelers Indemnity Co. v. Hyde, 232 Ark. 1020, 342 S.W.2d 295 (1961), we held that an exclusion for medical coverage while occupying a non-owned automobile, furnished for the regular use of the policyholder, rendered the policy ambiguous and its meaning a question of fact. In Hyde the exclusion was under the exception section of the policy. If it were ambiguous, certainly the present one is at least as ambiguous. In discussing the exclusion of a vehicle furnished for the insured’s regular use, we stated in the Hyde case:

... These provisions of the policy render it ambiguous. •Just what is meant by “for the regular use of either the named insured or any relative?” If “for his regular use” means personal use, it is one thing; if partly for his personal use and partly for the use of the employer, it could mean something else. If the insured was to use it in a certain area for one purpose, and he was injured while on a trip outside that area, for another purpose, then there could be a different meaning. Standing alone the terms of the policy are not sufficient to clear up the ambiguity, and the stipulation is not sufficient to enable the court to say as a matter of law what the ambiguous provisions really mean. .. . Perhaps it can be inferred that exclusive use means regular use. On the other hand, it could be exclusive without being regular. A jury could find that the wording in the policy “for the regular use of the insured” means personal use. This language certainly has that connotation. And the jury could reach the conclusion that the term means “for the benefit of the insured.” If this construction were put on the language by a j ury, then under the facts as set out in the stipulation the insured would be entitled to recover.

We can see from the language quoted from Hyde that this court has held that this same language is so ambiguous as to become a jury question. Many times we have held that if there is any substantial evidence to establish an issue in favor of the claiming party the motion for summary judgment must be denied. Cockman v. Welder’s Supply co., 265 Ark. 612, 580 S.W.2d 455 (1979).

One of the very few cases attempting to define regular and frequent use is that of Alabama Farm Bureau Mutual Casualty Ins. Co. v. Carswell, 374 So.2d 250 (Ala. 1979), wherein “regular use” was defined as “principal use as distinguished from casual or incidental use.” Frequent use was defined as “an often repeated but irregular, casual or incidental use... (Emphasis supplied).” Under the terms of the policy and in accordance with The Travelers Indemnity Co. v. Hyde, supra, and the principle set forth in Carswell we think that Mayhew’s use of the vehicle on personal errands is a proper matter for consideration in this case. The policy obviously excluded coverage while he had regular or frequent use of the vehicle. We hold that this means he was regularly and frequently using the vehicle from the time he left home to go to work until he returned to his home at the end of his work period. The use made thereafter for his personal convenience is the use we are considering at this time. Therefore, applying the definitions set forth in the Carswell case, we can see that the particular use of the vehicle at the time of the occurrence was outside the period when the vehicle was furnished for his regular and frequent use. To say the least, it is as ambiguous as the policy in the Hyde case. We hold that there was and is a genuine issue of fact to be determined with reference to the policy in question.

Under “conditions” set out in the policy, number 13 relates to other insurance. The other insurance provision reads as follows:

With respect to a substitute or non-owned automobile, coverage A, B, F and G shall be excess insurance over any other collectible insurance of any kind available to the insured irrespective of whether such other insurance was obtained by a person other than the named insured.

Therefore, it appears that the Farmers policy coverage is excess to Maryland’s policy in regard to claims arising out of the occurrence here in question. From the language contained in the policy, the provisions for non-owned automobiles would have given Mayhew coverage had he borrowed any other vehicle and become involved in a similar accident.

The case will be reversed and remanded with directions to proceed in a manner not inconsistent with this opinion.

Holt, J., not participating.


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

text:
    Troy Anthony VEASEY v. STATE of Arkansas
    CR 82-8
    637 S.W.2d 545
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      Richard E. Holiman, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, III, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was tried and convicted of rape in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977) and received a thirty-five year sentence. Jurisdiction is in the Supreme Court pursuant to Rule 29 (1) (b). This appeal follows the denial of a motion for a new trial. We affirm the trial court.

The facts relating to the motion for a new trial establish that appellant’s attorney stated by affidavit that two days after the trial he was in the corridor of the courthouse when Virgil Elmore, one of the jurors, approached him and said that the jury had assumed the appellant would serve considerably less than thirty-five years in prison because of the parole system. Appellant’s attorney then filed a motion for a new trial, acknowledging our caveat in Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), but alleging “the jury was given extraneous information that was improper concerning the parole system that greatly influenced the sentence to the prejudice of the defendant.” A hearing was held on the motion and the trial court limited questioning to whether any extraneous prejudicial information was improperly brought to the jury’s attention and whether any outside influence was brought to bear on any juror. Appellant objected to this restricted questioning and maintains that he should have been allowed to ask questions which address “the impropriety of a jury computing the sentence to be imposed on the basis of them applying one or more of their member’s uninformed ideas of the workings of the parole system to compute a sentence to insure a certain actual incarceration time.”

The questions and answers of Juror Elmore at the hearing on the motion for a new trial are representative of the testimony of the other jurors. They have been abstracted by appellant as follows:

My name is Virgil Elmore. Ido recall sitting on the jury trial of Troy Veasey.
MR. HOLIMAN: [appellant’s attorney] After you [were] seated in the box and sworn in as a jury panel, was there any extraneous or prejudicial information that was brought to bear upon your decision in that particular case?
MR. ELMORE: No. I simply observed and listened to the testimony and made my decision according to that testimony.
MR. HOLIMAN: Was there any outside influence brought to bear upon your decision in this particular case?
MR. ELMORE: No.

In Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), we held that a trial court should not instruct a jury on the law of parole. In that opinion we stated:

Their [the jury’s] duty is to determine, within the limits of the statute, the punishment that should be meted out for the crime that has been committed, and such judgment should not be influenced by any event that might occur at some time in the future. The subject matter is entirely alien to a judicial proceeding since it is handled entirely by another department of government, the executive.

The appellant contends that Andrews governs the issue of discussion of parole and the subject may have been impermissibly allowed into the deliberations here. However, after Andrews we clarified our holding by explaining in Woods v. State, 260 Ark. 882, 545 S.W.2d 912 (1977) that a reference to the possibility of parole by a juror would not constitute reversible error:

In Andrews we did not even intimate that the barest reference to the possibility of parole would be reversible error. Our holding was that the court should not attempt to explain to the jury the law governing the parole system. We adhere to that view, but no such explanation was attempted here. The challenged clause in the judgment certainly did not tell the jurors anything unknown to them, since it is hardly possible that even one person, much less twelve, old enough to serve on a jury would not know that Arkansas has a parole system.

We affirmed the Woods clarification in the recent case of Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980) and stated:

... If the jury or any of them, did take the possibility of parole into consideration in their determination of appellant’s sentence, any information they had concerning parole was independent knowledge which they had prior to trial.
# # #
... It would be highly unrealistic for this court to think that jurors do not consider the possibility of parole in arriving at a sentence in a criminal case. The outward expression of that by a juror is not grounds for a new trial.

The trial court was correct in refusing to set aside the verdict of the jury even if some jurors considered the possibility of parole. Thus, appellant’s argument that the trial court erred by restricting his questioning of the jurors in order to establish the jury’s consideration of parole is without merit. It is also without merit for a second reason.

The type of limited questioning appealed from is authorized and controlled by Rule 606 (b) of the Unif. Rules of Evid., Ark. Stat. Ann. § 28-1001 (Repl. 1977), which provides:

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other j uror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

This rule states plainly that a j uror may not testify as to the effect of anything upon his mind as influencing him to assent to the verdict. Sanson v. Pullum, supra. See also, Ashby v. State, supra.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the results reached by the majority only because we have previously held the same conduct to be nonprejudicial. Ashby v. State, 271 Ark. 239, 607 S.W.2d 675 (1980). However, I cannot agree with the majority if they are holding that the only two questions which may be asked of a juror are: (1) was there any extraneous or prejudicial information brought to bear upon your decision in this particular case; and, (2) was there any outside influence brought to bear upon your decision in this particular case?

I do not believe the rule was intended to be restricted to these two specific questions. In the first place, I think the average juror would not have a complete understanding of what these general questions mean. More appropriate questions might be: “did the jury consider how long the defendant would serve under the present parole system;” “did the jury cast lots to determine the number of years they would impose in this case;” or, “did the jury look at a file which was left in the j ury room. ’ ’ If one j uror influenced the other jurors because of his erroneous belief about the possibility of parole, the whole verdict could be contaminated. If we refuse to allow the court to comment on the parole system, as we did in Andrews v. State, 251 Ark. 279, 472 S.W.2d 86 (1971), then certainly a juror should not be allowed to instruct the other members of the jury on the parole system. Rule 606 (b) of the Uniform Rules of Evidence is set out in the majority opinion; however, I would like to repeat the last part of that rule:

. . . but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

This rule is obviously intended to be a vehicle for use when there is evidence of prejudicial or improper conduct on the part of a juror.

In the case of Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977), we reversed the trial court because of a racist remark made by a bailiff. When an investigator’s file was left in the jury room with the defendant’s name on the tab, we returned the case to the trial court for a determination of whether the jurors had made use of the file. Hutcherson v. State, 262 Ark. 535, 558 S.W.2d 156 (1977). In Lewis we reversed and remanded even though the juror admitted hearing the slur but maintained it did not sway her opinion. In Hutcherson we remanded the case to the trial court for the purpose of examining the jurors about the possibility of their having examined the investigator’s file. In neither of these cases would the two fixed questions allowed by the majority opinion be appropriate or sufficient to learn whether the jurors had considered matters outside the evidence presented.

I believe the purpose of Rule 606 (b) is to insure that jurors are not questioned about matters which are properly before them or about their deliberations on matters properly before them. However, the rule obviously has some further purpose, else the language used would have been omitted. The other language in the rule indicates it is proper to question jurors about matters being considered in deliberations which were improper. Of course, a juror could not be questioned until there had first been presented to the court evidence that extraneous, prejudicial or outside influence had probably been used and considered by the jury in arriving at a verdict. A wooden application of the rule which would restrict questions to the language in the rule is not, in my opinion, required. Such a strict application would not allow a juror to be asked whether he had accepted a bribe in the case. The questions should be limited to the purpose of the rule but questions should be presented in a manner which would apprise a juror of exactly what was being inquired into.

I agree with the results reached by the majority in this case.

      “We take this opportunity to state unequivocally, for the guidance of the bar, that in our opinion it is improper for a lawyer to interview jurors after a trial in an effort to obtain such inadmissible affidavits to impeach their own verdict.”


author: Robert H. Dudley, Justice.

text:
    Alvin LOVELACE v. STATE of Arkansas
    CR 82-30
    637 S.W.2d 548
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      William R. Simpson, Jr., Public Defender, and Jeff Rosenzweig, Deputy Public Defender, by: Richard E. Holiman, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant Alvin Lovelace was charged with the June 25,1981 aggravated robbery of the 7-11 convenience store at 1803 Broadway in Little Rock. A jury convicted appellant of aggravated robbery in violation of Ark. Stat. Ann. § 41-2102 (Supp. 1981) and he was sentenced to life imprisonment under the habitual criminal statute, Ark. Stat. Ann. § 41-1001 (Supp. 1981). Jurisdiction is in this Court pursuant to Rule 29 (1) (b). Appellant contends that the trial court erred in refusing to instruct the jury as to the lesser included offense of robbery. We affirm the trial court.

The evidence establishes that Lewis Parker was working the night shift at the 7-11 store when the robbery occurred. A man, later identified as appellant, came into the store shortly after 2:00 a.m. and asked to buy a pack of cigarettes. Parker bent down and reached under the counter to get the cigarettes. When he straightened up the man pulled a gun and said he wanted the money. Parker opened the cash register and then gave appellant the drawer containing the money. In the drawer there was a cluster of bills attached to a transmitting device. When the cluster of bills was removed the transmitting device activated a hidden camera. After appellant collected the money he told Parker not to make a move or he would kill him. Appellant repeated the threat as he left. Photographs taken by the hidden camera reproduce part of the scene during the aggravated robbery. One of the photographs is of the robber holding a small revolver. The trial court gave an instruction on aggravated robbery but refused to instruct on the lesser included offense of robbery. Appellant appeals from that ruling.

Aggravated robbery is set out in § 41-2102 as follows:

Aggravated robbery. — (1) A person commits aggravated robbery if he commits robbery as defined in Section 2103 of Act 280 of 1975 (Ark. Stat. Ann. § 41-2103) and he: (a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
* # #

And robbery is set out in § 41-2103 (Repl. 1977) as follows:

Robbery; — (1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
# # #

Robbery is a lesser included offense of aggravated robbery. Hill, et al v. State, 276 Ark. 300, 634 S.W.2d 120 (1982); Hamilton v. State, 262 Ark. 366, 556 S.W.2d 884 (1977). In Hill, we noted:

If there is any evidence to support the giving of the instruction on the lesser included offense, it must be given. Sargent v. State, 272 Ark. 336, 614 S.W.2d 503 (1981). But, if there is no rational basis for acquitting appellants of aggravated robbery and convicting them of the lesser offense of robbery, the lesser instruction need not be given. Ark. Stat. Ann. § 41-105 (3) (Repl. 1977); Hamilton v. State, supra.

The trial judge stated in Hill that he gave only the aggravated robbery instruction because there was no question that a deadly weapon was used. A similar situation exists here because all the testimony was that a gun was used and, uncontrovertibly there was no testimony indicating that a gun was not used. A photograph clearly reflects the use of a small pistol by the robber. Thus, there was no rational basis for acquitting appellant of aggravated robbery and convicting him of robbery. The appellant was guilty of aggravated robbery or nothing at all. Therefore, it was not error to refuse to instruct on the lesser included offense.

Affirmed.


author: Steele Hays, Justice.

text:
    Manuel STAFFORD v. CITY OF HOT SPRINGS, ACCIDENT REVIEW COMMITTEE and CIVIL SERVICE COMMISSION
    82-127
    637 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      Dan McGraw, for appellant.

      Curtis L. Ridgeway, for appellees.
   Steele Hays, Justice.

Appellant, a Hot Springs fireman, was involved in an accident with another vehicle during an emergency run of the city fire truck. Over appellant’s insistence that he was driving with due care, an Accident Review Committee found the collision was preventable, his speed being excessive for prevailing conditions. The committee assessed three penalty points against appellant under an Accident Review Point System and when he appealed the committee declined to reconsider its ruling.

Told that no further appeal rights were available, appellant filed suit in the Garland Circuit Court against the Accident Review Committee and the Civil Service Commission of Hot Springs, asking the court to order the commission to hear the appeal or, alternatively, to review and reverse the decision of the committee pursuant to the Arkansas Administrative Procedure Act, Ark. Stat. Ann. § 5-701 through 714.

The Circuit Court found it had no jurisdiction and granted defendants’ motion to dismiss pursuant to ARCP Rule 12 (b) (6), a failure to state facts upon which relief could be granted, and appellant has appealed. Our jurisdiction is invoked under Rule 29 (1) (f). We believe the trial court was correct and we affirm.

For reversal, appellant relies on Title 19, Chapter 16, Arkansas Statutes Annotated (Repl. 1980), entitled “Civil Service for Police and Fire Departments,” which covers appellant. Section 19-1605.1 provides that no civil service employee shall be discharged or reduced in rank or compensation without his being notified in writing and given the opportunity to request a trial before the Civil Service Commission on the alleged grounds for discharge.

Appellant concedes he was neither discharged, suspended or reduced in rank or compensation, but, he argues, the three penalty points wrongly assessed against him have increased his susceptibility to those sanctions. He points out that the Accident Review Point System provides that his privilege to drive a fire truck is subject to three months’ suspension upon an accumulation of 12 points, 6 months’ suspension upon an accumulation of 18 points, and a one year suspension for 24 points and that termination, transfer or demotion may result if suspension under the point system prevents him from performing the primary job he was employed to do, i.e. drive a fire truck.

We agree with appellant that it is possible for an accumulation of points to result in the equivalent of a discharge or reduction in rank or compensation, but we do not agree that simply because three penalty points have been assessed he can demand a trial before the commission. Section 19-1605.1 limits the right to a trial to threatened discharge or reduction in rank or compensation and nothing in Title 19 suggests the Legislature intended the Civil Service Commission, in addition to the other duties imposed, must also hear minor employee grievances. The argument that an accumulation of additional points could subject him to a reduction in rank or compensation is theoretical, and we do not render advisory opinions. See McCuen v. Harris, 271 Ark. 865, 611 S.W.2d 503 (1981). If additional points, sufficient to impose discharge or reduction, are assessed in the future (and are not abated upon six months driving free of accidents or violations, as provided in Section IV (A) of the Accident Review Point System) then appellant will be eligible for a trial under § 19-1605.1, in effect an appeal, and free to challenge any accumulated penalty points which he believes were wrongly imposed.

Appellant does not specifically rely on the Administrative Procedure Act on appeal, as he did before the trial court, but he does draw on language from the act, alleging that an inability to appeal the points imposed injures him in his business or property. But we have recently held the Administrative Procedure Act does not afford judicial review of the discharge of employees, as those determinations are administrative rather than adjudicatory. Arkansas Livestock and Poultry Commission v. House, 276 Ark. 326, 634 S.W.2d 388 (1982).

The order of dismissal is affirmed.


text:
    Ronnie Lee HARRISON v. STATE of Arkansas
    CR 82-26
    637 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Ronnie Lee Harrison was found guilty of the rape of a 19 year old woman in a Fort Smith laundromat. The jury recommended a life sentence and a $5,000.00 fine which the court imposed. Appellant alleges five points for reversal. We find no error and affirm the judgment.

When viewed in the light most favorable to the appellee, the proof was that about 11:00 p.m. on April 9,1981, the victim observed a man she later identified as the appellant park his car and enter the lighted laundromat where she was folding her laundry. As no one else was present, she watched the appellant go to the coke machine and to the restroom where he stayed a few minutes. He came up behind her, put his hand over her mouth and pulled her into the restroom. He forced her to undress and lie on the floor, where the assault occurred. He left immediately and she called the police and had them come to her apartment. She was badly frightened and upset when the police interviewed her. Although there was no light in the restroom, the victim said she could see her assailant’s face from the reflection from the moon. She described him as being approximately 25 years of age, 5 feet 11 inches tall, weighing around 160 pounds with medium length blondish-brown hair and small brown eyes, wearing a cowboy hat. The appellant was 21 years old, 5 feet 1VA inches tall, weighed 195 pounds and had medium length blondish-brown hair.

After describing the attack and her assailant, the victim went with the police to the hospital for a medical examination. Along the way they detoured to a shopping center parking lot where the appellant was being detained as a suspect. Both the appellant and his car generally matched the description given by the victim. While on the parking lot the victim remained in the police car about 20 feet away from the appellant. He had on a green cap instead of the cowboy hat worn at the laundromat. The victim was unable to identify the appellant as her assailant at this confrontation, which occurred approximately two hours after the attack and while she was described as still visibly shaken and upset.

Four days later, the victim was shown photographs of five individuals, including the appellant, whom she readily identified as her assailant. She also identified a shirt recovered from appellant which she recognized as the one worn by the man who raped her. Ms. Carolyn Thomas, with whom appellant was living at the time, testified that on April 9 the appellant left the apartment about 10:00 p.m. dressed in a western shirt, cowboy hat, boots and jeans, which attire matched the description by the victim. Ms. Thomas said the shirt was the same one the appellant had worn when he left the apartment that night. She testified the appellant admitted to her he had raped a woman in the laundromat.

On April 14 appellant was arrested in Mena, Arkansas, and returned to Fort Smith by Detective Mike Brooks of the Fort Smith Police. After being given his Miranda rights and signing a waiver form, appellant made a full confession corroborating many of the details given by Ms. Thomas and by the victim. At trial the victim’s identification of the appellant as the attacker was unequivocal.

First appellant contends the trial court erred in not suppressing the victim’s in-court identification of the appellant, as being tainted by the confrontation on the parking lot shortly after the attack. He also contends the identification procedure was unconstiutionally unreliable and suggestive. Following a hearing, the trial court denied appellant’s motion to suppress identification testimony. On appellate review, a trial court’s decision on the admissibility of an identification should not be reversed unless, viewing the totality of the circumstances, it is clearly erroneous. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980); Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976). In James & Elliot v. State, 270 Ark. 596, 605 S.W.2d 448 (1980), we stated at 600:

It is the likelihood of misidentification that taints the out of court identification process. In determining whether an in-court identification is tainted by pretrial occurrences, we consider the totality of the circumstances. In doing so, we consider the opportunity of the identifying witness to observe the accused at the time of the criminal act; the lapse of time between the occurrences and the identification; any inconsistencies of the description given by the witness; whether there was prior misidentification; the facts surrounding the identification; and all matters relating to the identification process. Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978). We have stated reliability is the linchpin in determining the admissibility of identification testimony. In the determination of the admissibility we consider the totality of the circumstances. Lindsey & Jackson v. State, 264 Ark. 430, 572 S.W.2d 145 (1978). In Neil v. Biggers, 409 U.S. 188 (1973), it was held that a “show up” rather than a line-up does not violate a defendant’s constitutional right unless there are other circumstances rendering the identification unreliable.

The victim testified that her in-court identification of the appellant was based upon her recollection of the crime and independent of the parking lot confrontation. Furthermore, there was no substantial likelihood of misidentification, as there was independent evidence of his identity. Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982). The appellant’s confession to Detective Brooks and his admission to Carolyn Thomas constitute strong and convincing evidence of his identity independent of the victim’s testimony.

Any question that might have arisen from the victim’s failure to identify the appellant in the parking lot confrontation was one of reliability and is normally for the jury to decide. In Watkins v. Sowders, 449 U.S. 341 (1981), the United States Supreme Court stated at 347, 348:

It is the reliability of identification evidence that primarily determines its admissibility, Manson v. Brathwaite, 432 U.S. 98, 113-114; United States ex rel Kirby v. Sturges, 510 F.2d 397, 402-404 (CA7 1975) (Stevens, J.). And the proper evaluation of evidence under the instructions of the trial judge is the very task our system must assume juries can perform. Indeed, as the cases before us demonstrate, the only duty of a jury in cases in which identification evidence has been admitted will often be to assess the reliability of that evidence. Thus the Court’s opinion in Manson v. Brath waite approvingly quoted Judge Leventhal’s statement that,
“[wjhile identification testimony is significant evidence, such testimony is still only evidence, and, unlike the presence of counsel, is not a factor that goes to the very heart — the ‘integrity’ — of the adversary process.
“Counsel can both cross-examine the identification witnesses and argue in summation as to factors causing doubts as to the accuracy of the identification — including reference to both any suggestibility in the identification procedure and any countervailing testimony such as alibi.” 432 U.S. 98, 114, n. 4 quoting Clemons v. United States, 133 U.S. App. D.C. 27, 48, 408 F.2d 1230, 1251 (1968).

Looking at the totality of the circumstances, we cannot say the trial court’s ruling to admit the victim’s identification testimony was clearly erroneous.

Next, appellant argues two points together: The trial court erred in not suppressing appellant’s confession as a violation of the Fourteenth Amendment of the United States Constitution and Article 2, § 8 of the Arkansas Constitution; and second, in not clearly ruling the confession was involuntary. Taking the second point first, the record unmistakably shows the trial court ruled the statement was voluntary. In denying appellant’s motion to suppress, the court said, “Motion to Suppress Statements will be overruled.” (T. 85).

A review of the trial court’s determination that a confession is voluntary is based on the totality of the circumstances and will not be reversed unless clearly against the preponderance of the evidence. Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). The appellant contends Detective Brooks fabricated the confession and psychologically coerced him into signing it by telling him that mental health services would be forthcoming “when we are able to acquire the services of an attorney.” (T. 81). Detective Brooks’ testimony refuted appellant’s allegations of coercion and of any fabrication. Detective Brooks’ testimony is bolstered by Ms. Thomas’ testimony as to a confession prior to his arrest. Where the voluntariness of a confession is in issue, any conflict in the testimony of different witnesses is for the trial court to resolve based on the credibility of witnesses. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). Apparently this conflict was resolved in the State’s favor and we see no reason for the court’s determination to be disturbed.

Another contention is his motion for a mistrial should have been granted because the prosecuting attorney’s closing argument contained a comment vouching for the veracity of a witness. The comment was:

Now, if you believe the defendant’s version, that Mike Brooks promised him that he would never get the penitentiary on a rape case, which I’m certain Mike Brooks denied giving and I know he knows better than that, but he has denied that. . . . (T. 296).

After denying the motion for a mistrial, the trial court admonished the jury as follows:

I will remind the jury that any statements or remarks of attorneys having no basis in the evidence should be disregarded by you. (T. 297).

The test is whether there was a manifest abuse of discretion by the judge in failing to act properly to an objection to improper remarks by the prosecutor. Shaw v. State, 271 Ark. 926, 611 S.W.2d 522 (1981). We cannot say the trial judge abused his discretion in denying a motion for a mistrial. The prosecutor’s remark does not seem calculated and the judge promptly admonished the jury to disregard the remark. In Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979), we stated at 332, 333:

The trial judge has a very broad latitude of discretion in supervising and controlling the arguments of counsel and his action is not subject to reversal unless there is manifest gross abuse of that discretion or the matter complained of is a statement of the attorney’s opinion made only to arouse passion and prejudice of the jury, and which necessarily has that effect. Parrott v. State, 246 Ark. 672, 439 S.W.2d 924; Stanley v. State, 248 Ark. 787, 454 S.W.2d 72; Perry v. State, 255 Ark. 378, 500 S.W.2d 387; Willis v. State, 220 Ark. 965, 251 S.W.2d 816. ... It is also significant that the trial judge had instructed the jury that closing arguments of attorneys are not evidence and that arguments having no basis in the evidence should be disregarded. See Stanley v. State, supra.

Finally, appellant argues, without citing authority, the trial court erred in denying his motion for a mistrial based on the following objection during the cross examination of the rape victim:

Q: Are you living now at the same place you were living at the time?
PROSECUTING ATTORNEY: Your Honor, unless there is some purpose for this we would rather she not say what address she was living at. (T. 181).

The prosecuting attorney based his objection on relevancy grounds. Appellant now contends this objection was untimely and prejudicial. At trial when given the opportunity to show how the question was relevant, the appellant chose to withdraw the question. Under the circumstances of this case, we totally fail to see any prejudice so great as to require the drastic remedy of a mistrial. See Cobb v. State, 265 Ark. 527, 579 S.W.2d 612 (1979).

Affirmed.


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    Glenn BARNUM v. STATE of Arkansas
    CR 79-190
    637 S.W.2d 534
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      Robert A. Newcomb, for petitioner.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for respondent.
   Per Curiam.

Petitioner Glenn Barnum was convicted in the Circuit Court of Pulaski County of attempted capital murder, Ark. Stat. Ann. § 41-701, 1501 (Repl. 1977), and aggravated robbery, Ark. Stat. Ann. § 41-2102 (Repl. 1977). He was sentenced to a term of 24 years imprisonment for attempted capital murder and a term of 20 years imprisonment for aggravated robbery with the sentences to run consecutively. We affirmed. Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37 for the purpose of vacating or setting aside his 20 year sentence for aggravated robbery.

Petitioner alleges that it was improper for him to be convicted and sentenced for attempted capital murder and aggravated robbery since aggravated robbery was the underlying specified felony to the charge of attempted capital murder. He asserts, inter alia, that the conviction and sentence for aggravated robbery violates Ark. Stat. Ann. § 41-105 (Repl. 1977).

When a criminal offense, by its definition, includes a lesser offense, a conviction cannot be had for both offenses. § 41-105. Rowe v. State, 275 Ark. 30, 627 S.W.2d 16 (1982); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). Section 41-105, supra, reads in pertinent part:

(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) one offense is included in the other as defined in subsection (2):
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense (required to establish the commission of the offense) charged; or
(b) it consists of an attempt to commit the offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

In proving the elements of attempted capital murder, it is necessary to prove the elements of aggravated robbery. Rowe v. State, supra. Therefore, in light of our recent holdings in regard to Ark. Stat. Ann. § 41-105 in Rowe, Simpson and Swaite, supra, we hold that the sentences imposed on petitioner were in excess of the maximum sentence authorized by law. In accordance with Rule 37.1, we therefore set aside petitioner’s conviction and sentence for the lesser included offense of aggravated robbery. Rowe v. State, supra. The conviction and sentence for attempted capital murder are not disturbed. Since the conviction and sentence for aggravated robbery are set aside, an evidentiary hearing in circuit court, as requested by the petitioner, becomes unnecessary.

Petition granted in part and denied in part.


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    Jerry OSBOURNE v. STATE of Arkansas
    CR 80-154
    637 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered July 6, 1982

      William McArthur, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant was convicted in White County Circuit Court of three felonies and judgment was entered on July 25,1979. Notice of appeal was filed September 28,1979, by the trial attorney, Bob Scott. On December 18, 1979, the trial court granted an extension of time until February 20, 1980, within which to file the transcript and record with this court. Apparently, Bob Scott did not notify appellant as to the time when the transcript was due nor did he take any action to perfect the appeal. For all intents and purposes, he seems to have unilaterally withdrawn from the case. On April 10,1981, a hearing was conducted in the White County Circuit Court in which the court ruled that appellant was inadequately represented on his appeal. The trial court then granted appellant the right to file a belated appeal.

Rule 11 (h), Rules of the Supreme Court of Arkansas, places certain duties upon the trial attorney if he intends to withdraw from the case. We considered this matter in the case of Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979), and held that Rule 36.9, Rules of Criminal Procedure, allows the supreme court to act upon and decide a case in which neither the notice of appeal was timely given nor the transcript timely filed. In Finnie we held that it was the duty of the trial attorney to obtain permission from the trial court to withdraw from the case and the petition to withdraw should contain a statement of the reasons therefor. Also, we held that a copy of the request for withdrawal, if granted, should be sent to the appellant. Rule 36.9 provides that the supreme court may act upon and decide a case in which the notice of appeal was not given or the transcript untimely filed when a good reason for the omission was shown by affidavit. In the present case no good reason was shown by trial counsel. However, we think the motion for a belated appeal was properly granted by the trial court because the trial attorney, Bob Scott, had apparently abandoned his client and left him without an appeal being perfected.

Under the circumstances of this case we think the belated appeal should be granted and we concur with the decision of the trial court to allow an appeal to be filed. A copy of this per curiam will be furnished to the Committee on Professional Conduct.

Adkisson, C.J., and Hickman, J., dissent.


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    THE CELOTEX CORPORATION and KNOX GILL COMPANY v. THE LITTLE ROCK SCHOOL DISTRICT OF PULASKI COUNTY, Arkansas, A Body Corporate, et al
    82-8
    637 S.W.2d 566
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982
    [Opinion Amended on Denial of Rehearing September 13, 1982.]

      House, Holmes & Jewell, P.A., by: Robert L. Robinson, Jr. and Kathryn D. Holt, for appellant Celotex Corporation.

      Laser, Sharp, Haley, Young & Huckabay, P.A., by: Peter B. Heister, for appellant Knox Gill Company.

      Wright, Lindsey ir Jennings, for appellee Cromwell, Neyland, Truemper, Levy and Gatchell, Inc.

      Friday, Eldredge & Clark, by: Michael G. Thompson, for appellee and cross-appellant Little Rock School District.
   Richard B. Adkisson, Chief Justice.

This is a second appeal from a suit in which The Little Rock School District, hereinafter LRSD, seeks damages arising from the roofing of Parkview High School. This case was first before us in The Little Rock School District v. Celotex Corporation, 264 Ark. 757, 574 S.W.2d 669 (1978); Supplemental Order, 264 Ark. 768-A, 576 S.W.2d 709 (1979) and was remanded.

LRSD originally filed this action in Pulaski County Circuit Court on March 25, 1975, against Celotex Corporation, the manufacturer of the roofing material, and Knox Gill Company, the roofing subcontractor, alleging breach of implied and express warranty and negligence. Celotex and Knox Gill filed third-party complaints against Cromwell, Neyland, Truemper, Levy and Gatchell, Inc., hereinafter Cromwell, the architectural firm, alleging negligence. Knox Gill also filed a cross-complaint against Celotex Corporation alleging negligence and breach of warranty.

On the first appeal this Court held that all grounds for relief between the parties were barred by the statute of limitations, except for express warranty which was held to be a question for the jury.

After remand to the circuit court LRSD amended its complaint against Celotex Corporation to allege fraudulent misrepresentations and requested punitive damages. Knox Gill amended its cross-complaint against Celotex Corporation to ask for similar relief. The trial court, by order dated September 22,1981: (1) denied Celotex’s motion to strike and dismiss the fraudulent misrepresentation and punitive damage claims; (2) dismissed Celotex’s third-party negligence complaint against Cromwell; (3) dismissed LRSD’s negligence count against Celotex and Knox Gill. All the parties appeal. We affirm.

Celotex argues the trial court erred in failing to strike and dismiss the amended complaints for fraudulent misrepresentation of LRSD and Knox Gill. The trial court, in refusing to dismiss, found “factual issues which must await disposition upon submission of proof.” The trial court’s order refusing to dismiss is not a final order which may be appealed under Rule 2 of the Arkansas Rules of Appellate Procedure, Ark. Stat. Ann., Vol. 3A (Repl. 1979). The denial of a motion to strike portions of a pleading is not a final order under Rule 2. See also Williams v. Varner, 253 Ark. 412, 486 S. W.2d 79 (1972); Stacker & Dugan v. Southwestern Co., 245 Ark. 350, 432 S.W.2d 481 (1968).

But, Celotex argues that the refusal to strike is an appealable intermediate order under Rule 2 (b) which provides:

An appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.

Celotex contends that the dismissal of Celotex’s third-party negligence complaint and the dismissal of LRSD’s negligence claim against Celotex and Knox Gill are the final orders which make Rule 2 (b) applicable. We disagree. The dismissal of these claims is not a final order for purposes of this case because these claims were previously disposed of by the Court in the first appeal. There, by supplemental per curiam order, we granted Cromwell’s petition for rehearing, holding that negligence causes of action were barred by the statute of limitations. By the granting of that petition, all claims against Cromwell were dismissed, including those of Celotex, Knox Gill, and LRSD. That holding became the law of the case and is controlling upon this Court in a second appeal. Furthermore, although the per curiam’s dismissal of the negligence claim did not expressly apply to a party other than Cromwell, the order’s effect was to dismiss LRSD’s negligence claim against Celotex and Knox Gill, Knox Gill’s negligence claim against Celotex, and Celotex’s negligence claim against Knox Gill.

The above holding as to the meaning of our supplemental opinion disposes of the other issues argued on appeal.

Affirmed.


text:
    Carl FRIEND v. Bobby GOSLEE
    82-122
    637 S.W.2d 568
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982
    [Rehearing denied September 13, 1982.]

      Hobbs, Longinotti ¿r Bosson, P.A., by: Richard W. Hobbs, for appellant.

      Gibbs ir Hickam, by: Marcia Renaud Hernsberger, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellee, Bobby Goslee, filed a complaint in Garland County Circuit Court alleging that appellant, Carl Friend, an out-of-state resident, owed him $20,000 plus court costs on two promissory notes. Following appellant’s failure to answer pursuant to ARCP Rule 12 (a), judgment by default was entered. On appeal, we affirm.

Service on the complaint was had on September 28, 1981; on October 9 the court denied appellant’s motion for additional time in which to respond holding that the motion gave insufficient reasons as to why more time was needed; on October 21 appellee filed a motion for default judgment to which appellant responded by correctly stating that he was not in default because as an out-of-state resident he had 30 days to answer a complaint under Rule 12.

On October 26 appellant filed a second motion for additional time setting out the reasons why more time was needed. The court never acted on this motion and instead entered default judgment against appellant on November 5. Appellant filed his answer on November 10, and on November 18 filed a motion to set aside the default judgment. The motion was denied on January 13, 1982.

Appellant argues that the court erred in granting a default judgment because appellee’s motion for default judgment was filed before appellant was actually in default. Appellee’s motion was filed on October 21, yet appellant’s 30 days in which to answer under Rule 12 did not expire until October 28. However, the trial court did not enter the judgment until November 5, at which time appellant actually was in default; therefore, appellant’s argument is without merit.

Appellant also argues that the trial court erred in finding him in default while appellant’s second motion for additional time in which to answer was pending. A motion for additional time in which to answer does not automatically extend the time for filing an answer under Rule 12. Since the trial court did not act upon the motion, appellant should have filed his answer within the prescribed time instead of filing it 13 days after the time had expired.

Appellant also argues that he was entitled to five additional days to reply to appellee’s response to his motion for additional time before a default judgment could be entered. This issue is resolved by our holding that the original motion did not extend the time for filing an answer.

Although we recognize that ARCP Rule 55 governs default judgments, we do not consider its applicability to this case because it was not raised in the trial court or argued on appeal.

Affirmed.