text:
    David KELCH v. The Honorable Harold ERWIN
    CR 98-255
    970 S.W.2d 255
    Supreme Court of Arkansas
    Opinion delivered June 10, 1998
    [Petition for rehearing denied July 9, 1998.]

      Charlie Moyer, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Ray Thornton, Justice.

Petitioner David Wayne Kelch seeks a writ of prohibition asserting that the trial court is wholly without jurisdiction to try him on charges of manufacturing a controlled substance because his right to a speedy trial has been violated. The trial court denied his motion to dismiss, and we have jurisdiction to consider the issuance of the writ. We decline to issue a writ of prohibition.

Kelch was arrested on March 22, 1996, and was charged on March 26, 1996, with manufacturing a controlled substance, ephedrine, a schedule V drug, in violation of Ark. Code Ann. § 5-64-401 (Repl. 1997). The product allegedly manufactured by Kelch was found in a liquid solution held in two containers in his possession. He pled guilty to the charge on December 2, 1996, and was sentenced on December 5, 1996, to twenty years in the State Department of Correction. On December 18, Kelch petitioned the trial court to withdraw his guilty plea and to vacate the sentence, based on his assertion that he had been misled to believe that the State Crime Lab possessed sufficient proof that the solution in his possession contained the controlled substance, ephedrine, which constituted the basis of the charge of manufacturing a controlled substance. At the January 9, 1997 hearing on the petition, the State chemist testified that the substance found in the container was not ephedrine, but was methcathinone, a schedule I controlled substance. The trial court granted his petition, allowing Kelch to withdraw his guilty plea.

Kelch filed a motion to dismiss on February 7, 1997, alleging a violation of his rights to be protected against double jeopardy. Following the trial court’s order denying the motion to dismiss, the State filed an amended felony information on May 23, 1997, charging Kelch under the same statute, Ark. Code Ann. § 5-64-401, for manufacturing methcathinone.

The trial court granted Kelch’s motion for a continuance on or about July 8, 1997. The court specified that the time from June 16 to September 8, 1997, would be excluded pursuant to Ark. R. Crim. P. 28.3(d). On August 4, 1997, Kelch filed a motion to dismiss, alleging that his right to a speedy trial had been violated because the State had the responsibility to bring him to trial within one year of the date on which he was arrested for the original criminal episode. The trial court held a hearing, and denied the motion. The trial court suggested that Kelch file a petition for writ of prohibition to this court, and this petition ensued.

A writ of prohibition is an extraordinary writ that is only appropriate when the court is wholly without jurisdiction. West Memphis Sch. Dist. No. 4 v. Circuit Court of Crittendon County, 316 Ark. 290, 871 S.W.2d 368 (1994). Jurisdiction is the power or authority of the court to act. Id. This court has stated that Rule 28.1 of the Arkansas Rules of Criminal Procedure, which is Arkansas’s rule governing a defendant’s right to a speedy trial, is a jurisdictional rule inasmuch as it requires an accused to be brought to trial within a twelve-month period following arrest, or to be absolutely discharged pursuant to Ark. R. Crim. P. 30.1(a). Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993). Therefore, a petition for a writ of prohibition is appropriate to prevent a court from exercising a power not authorized by law where there is no other remedy. Id. Further, our rules of criminal procedure expressly authorize an accused to bring a petition for writ of prohibition when the trial court denies the accused’s motion for dismissal under the speedy-trial rules. See Ark. R. Crim. P. 28.1(d).

Pursuant to Rule 28.1, the State has twelve months from the time provided in Rule 28.2 to bring an accused to trial, excluding certain periods of delay authorized under Rule 28.3. The time provided in Rule 28.2 follows:

The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the time of arrest.
...
(c) if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial, order granting a new trial, or remand.

Ark. R. Crim. P. 28.2. Rule 28.2 thus requires a trial to be held within twelve months of the date the charges are filed unless the defendant has been continuously in custody or on bail for the same offense or an offense arising out of the same episode, or unless the court grants a mistrial, a new trial, or allows the accused to withdraw his guilty plea. Ark. R. Crim. P. 28.2(a) and (c); Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989) (holding that an order allowing the withdrawal of a guilty plea is analogous to an order granting a new trial). Once it has been determined that the trial took place outside the speedy-trial period, the State bears the burden of proving that the delay was legally justified. Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993).

In this case, the State did not bring Kelch to trial within twelve months from the date that the charge was filed or from the date of his arrest. He was arrested on March 22, 1996, and charges were filed on March 26. At the time that Kelch filed his motion to dismiss for violation of his speedy-trial rights, Kelch had been incarcerated approximately seventeen months, with his trial scheduled to begin about one month later; therefore, he was clearly not brought to trial within twelve months from his arrest or from the date the information was filed.

The State argues that, under Arkansas case law, the delay in bringing Kelch to trial was legally justified because Kelch’s withdrawal of his guilty plea acted to start the speedy-trial time running anew when it was granted January 9, 1997. Therefore, without even considering whether any periods of time might be excluded under Ark. R. Crim. P. 28.3, only eight months had run between the date that Kelch’s trial was scheduled, September 8, 1997, and the date that the order was filed allowing Kelch to withdraw his guilty plea.

Kelch claims that the withdrawal of his plea could not restart the time for speedy trial because he did not plead guilty to the charge of manufacturing the controlled substance, methcathinone, the charge that the State had the appropriate proof to substantiate. Rather, he argues that he only pled guilty to manufacturing the controlled substance, ephedrine. Kelch essentially alleges that the amended information filed on May 23, 1997, was not a continuation of the charge to which he had pled guilty, but rather charged a new and different offense that should not be affected by the guilty plea and the subsequent withdrawal of the guilty plea. He urges that the charges of manufacturing the controlled substances that were filed in the information and in the amended information should be considered separate offenses that arose from “the same offense or an offense based on the same conduct or arising from the same criminal episode” pursuant to Ark. R. Crim. P. 28.2(a). Under this argument, Kelch’s time for speedy trial would have begun to run from the date of his arrest, March 22, 1996, and a September 1997 trial date would have violated his right to a speedy trial.

It is well settled that an order allowing the withdrawal of a plea of guilty has same effect as an order granting a new trial, and the time for trial begins to run anew after the order is entered allowing the withdrawal of a guilty plea. Nettles v. State, 303 Ark. 8, 791 S.W.2d 702 (1990) (citing Kennedy v. State, 297 Ark. at 489, 763 S.W.2d at 649). In Kennedy, this court stated that a defendant gives up certain rights when he pleads guilty to an offense, including the right to a speedy trial. Kennedy, 297 Ark. at 489, 763 S.W.2d at 649.

Kelch argues against the State’s reliance on Kennedy and its progeny by asserting that Callender v. State, 263 Ark. 217, 563 S.W.2d 467 (1978), controls in this case. Our holding in Callender v. State did not involve the question whether the time for speedy trial commenced upon an order for a new trial, mistrial, or setting aside a guilty plea. Instead, without such an intervening event, we held that the requirement for a speedy trial started with the original criminal episode. Id.

In the case before us, the pivotal issue is whether the trial court properly allowed the State to amend the information to conform to the proof demonstrating that methcathinone, rather than ephedrine, was the controlled substance comprehended in the charge to which Kelch had pled guilty. If the amendment was properly granted, then Kelch’s success in withdrawing his guilty plea would clearly start the speedy trial clock anew. Further, if the amendment to the charge was proper and started the time for speedy trial anew upon the entry of the order allowing the withdrawal of Kelch’s guilty plea, we need not decide in this case the underlying question whether the entry of a guilty plea and its subsequent withdrawal starts the speedy-trial clock running over again for all offenses that may have been committed during the same criminal episode.

Therefore, we next consider whether the amendment of the information was proper. Our standard for amending criminal informations is well settled, and it is consistent with the general rule. The State is entitled to amend the information, including amending to conform to the proof, when the amendment (1) does not change the nature or degree of the crime charged, and (2) the defendant is not prejudiced by unfair surprise. See, e.g., Lovett v. State, 330 Ark. 33, 952 S.W.2d 644 (1997) (allowing amendment to change name of victim, stating that the appellant “could express little surprise” since he was well aware of which person he injured); Ark. Code Ann. § 16-85-407; 42 C.J.S. Indictments and Informations § 195, at 530-31.

This court has specifically expressed that the State may amend an information to conform with the proof, as follows:

The state is entitled to amend an information to conform to the proof when the amendment does not change the nature or degree of the alleged offense .... Such authorization simplifies procedure and eliminates some technical defenses by which an accused might escape punishment .... The change sought by the state [amending the information from DWI, fourth offense, to DWI, first offense] would not have changed the nature or degree of the offense but would merely have authorized a less severe penalty.

Wilson v. State, 286 Ark. 430, 432, 692 S.W.2d 620, 621 (1985) (quoting State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984)). In a similar vein, we have also determined that the fact that an amendment authorizes a more severe penalty does not change the nature or degree of the offense, and is therefore permissible. Kilgore v. State, 313 Ark. 198, 852 S.W.2d 810 (1993). We have specifically allowed the State to amend an information from a Class D felony to a Class B felony, stating that the appellant was sufficiently apprised of the specific crime with which she was charged to the extent necessary to enable her to prepare her defense, that being all that is required. Workman v. State, 267 Ark. 103, 589 S.W.2d 21 (1979).

We have found no error where a trial court allowed the State to amend an information during the trial to conform to the testimony of the chemist, who testified that there was no such drug as “sulfate” pentrobarbital, and that the correct term was “sodium” pentrobarbital. Washington v. State, 248 Ark. 318, 319-20, 451 S.W.2d 449, 450 (1970). We concluded that the amendment did not change the nature or degree of the offense and that the defense did not allege prejudice based on surprise or the denial of a request for a continuance based on the change. Id.; see also United States v. Nitti, 733 F. Supp. 496 (D. Puerto Rico 1990) (holding that an amendment to the information to reflect the correct quantity of cocaine seized was an amendment of form, rather than of substance; quantity of cocaine was not an essential or material element of the charged offense).

Looking to other jurisdictions for guidance, the California Court of Appeal has permitted the State to amend an indictment to substitute “marijuana” for “heroin,” on the basis of the court’s conclusion that specification of the narcotic that was allegedly sold only “describes the manner in which the law was violated.” People v. Garcia, 240 Cal. App. 2d 9, 49 Cal. Rptr. 146, 147 (1966); see also People v. Huerta, 148 Cal. App. 2d 272, 306 P.2d 505 (1957) (allowing amendment of the indictment from charging the sale of marijuana to charging the sale of heroin); United States v. Knuckles, 581 F.2d 305 (2d Cir. 1978), cert. den. 439 U.S. 986 (1978) (affirming jury’s conviction of the defendant for the possession with intent to deliver cocaine, although the indictment charged possession with intent to deliver heroin, where the only variance that defense alleged dealt with the exact nature of the substance, and such variance did not prejudice defendant’s ability to defend case).

Under the cases examined above, we conclude that if the guilty plea had not been forthcoming, an amended information to conform to the proof that methcathinone rather than ephedrine had been contained in the chemical solution would have been proper. Here, the entry of the guilty plea, its acceptance by the State, and the entry of the court’s judgment and decree resolved all charges relating to the manufacturing of a controlled substance. As we stated in Kennedy, the entry of a guilty plea results in significant changes in the status of the parties, and one result is that the defendant’s right to a speedy trial is affected by the plea. Kennedy, 297 Ark. at 489, 763 S.W.2d at 649. In the circumstances of this case, we recognize that the entry of the guilty plea of manufacturing a controlled substance, ephedrine, and its later withdrawal had the effect of restarting the time for speedy trial on the amended information charging the manufacturing of a controlled substance, methcathinone, at the time of the withdrawal of the guilty plea.

Based on the foregoing analysis, we determine that the State’s amendment to the information did not alter the nature or degree of the offense charged and was therefore proper. Kelch was brought to trial within twelve months of the date that the trial court entered the order allowing him to withdraw his guilty plea, and, therefore, his right to a speedy trial was not violated under these circumstances.

Petition denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Richard Francis BARR v. STATE of Arkansas
    CR 98-328
    970 S.W.2d 243
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Kenneth Fuchs, for appellant.

      Winston Bryant, Att’y Gen., by: David R. Raupp, Sr. Asst. Att’y Gen., for appellee.
   Per Curiam.

Richard Francis Barr was convicted of rape. His counsel, Kenneth Fuchs, filed a notice of appeal on December 5, 1997. An order was entered by the circuit court on December 11, 1997, relieving Mr. Fuchs as Mr. Barr’s counsel. The record was lodged with this Court on March 18, 1998. Mr. Barr’s brief was due April 20, 1998, but it has yet to be filed.

The State has moved to dismiss the appeal for failure of Mr. Barr to file a brief. A response to the motion was filed by Mr. Fuchs who stated that he had been relieved and suggesting that counsel be appointed to handle the appeal of Mr. Barr who is indigent.

We decline to dismiss the appeal. Arkansas R. App. P. — Criminal 16 provides:

Trial Counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause. After the notice of appeal of a judgment of conviction has been filed, the Supreme Court shall have exclusive jurisdiction to relieve counsel and appoint new counsel. [Emphasis supplied.]

Mr. Fuchs remains the counsel of record in this Court for Mr. Barr. The Clerk will set a briefing schedule.


text:
    Larry DONIHOO v. STATE of Arkansas
    CR 97-766
    968 S.W.2d 62
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Charles A. Potter, for appellant.
    No response.
   Per Curiam.

Attorney Charles A. Potter, counsel for appellant Larry Donihoo, appeared for a hearing before this court on June 4, 1998, to show cause why he should not be held in contempt for failing to file his client’s brief on or before the due date of August 18, 1997. Donihoo v. State, 333 Ark. 340, 968 S.W.2d 626 (1998).

During the hearing conducted on June 4, 1998, we accepted Mr. Potter’s guilty plea for failing to file his client’s brief. In sum, Mr. Potter failed to file appellant’s brief that was due on August 18, 1997. Neither did he respond to the State’s later motion to dismiss appellant’s appeal because no brief had been filed. It was only after appellant’s appeal had been dismissed that Mr. Potter sought reinstatement of appellant’s appeal and requested time to file a brief. We have granted reinstatement of appellant’s appeal and have set a date of June 30, 1998, for the filing of appellant’s brief.

We hold Mr. Potter is in contempt of this court’s directives for failing to file the appellant’s brief in a timely manner, and fine him $250.00. A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Corbin, J., not participating.


text:
    Freddie Davis MATTHEWS v. STATE of Arkansas
    CR 98-436
    970 S.W.2d 266
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Rick Woods, for appellant.
    No response.
   Per Curiam.

Appellant Freddie Davis Matthews was convicted of a Class-Y felony. Appellant filed in the trial court a petition for postconviction relief pursuant to Ark. R. Crim. P. 37. On February 9, 1998, the trial court denied appellant’s petition. Appellant filed a notice of appeal and designation of record on February 24, preserving his right to appeal the denial of his petition. Also on February 24, appellant’s counsel, Rick Woods, filed a motion for leave to withdraw appearance as counsel, which the trial court granted on March 3. Mr. Woods forwarded to appellant a notice of filing of appeal and the transcript from the Rule 37 hearing on April 20.

Now Mr. Woods has filed in this court a motion for leave to withdraw appearance as counsel on behalf of his client in order to refieve him from representation due to the fact that Mr. Woods has a jury trial on June 1 and 2 that prevent him from adequately representing appellant in this appeal. We find this reason insufficient cause for granting this motion to withdraw as counsel.

Rule 16 of our Criminal Rules of Appellate Procedure provides as follows:

Trial counsel, whether retained or court appointed, shall continue to represent a convicted defendant throughout any appeal to the Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw in the interest of justice or for other sufficient cause.

Ark. R. App. P.—Criminal 16 (1998); see also Ark. Sup. Ct. R. 4-3(j)(1) (1998); Jackson v. State, 325 Ark. 27, 923 S.W.2d 280 (1996). Rule 16 applies to appeals of orders denying post-conviction relief as well. Sanders v. State, 329 Ark. 363, 952 S.W.2d 133 (1997). Once a notice of appeal is filed with the circuit clerk, only the appeals court may relieve counsel of the obligation to proceed with the appeal. Jackson, 325 at 28, 923 S.W.2d at 281.

Mr. Woods requests permission to withdraw from representing appellant due to a conflict, a jury trial on another client’s felony charge that was scheduled for June 1-2, 1998. Mr. Woods contends that his preparation for this trial would render him unable to effectively assist appellant in bringing this appeal. We do not find this sufficient cause to relieve him of his responsibility now that the appeal has been filed.

The present motion for leave to withdraw appearance as counsel is denied. An appropriate briefing schedule shall be set by the clerk of this court.


text:
    Marcel Wayne WILLIAMS v. STATE of Arkansas
    CR 97-949
    970 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered June 11, 1998

      Herbert T. Wright, Jr., for appellant.

      No response.
   Per Curiam.

The procedural background in this death case is set forth in owe per curiam opinion delivered on April 23, 1998. Williams v. State, 332 Ark. 671, 963 S.W.2d 221 (1998). Attorney Herbert T. Wright, Jr., counsel for petitioner Marcel Wayne Williams, was ordered to appear before this court on January 8, 1998, to show cause why he should not be held in contempt for his failure to file Mr. Williams’s brief as of the final extension date of March 23, 1998. Mr. Wright appeared on May 7, 1998, entered a plea of guilty to the contempt citation, and accepted responsibility for failing to file Mr. Williams’s brief. In mitigation, he told the court that his case load had been unusually heavy during this period of time.

Based on the foregoing, we hold that Mr. Wright is in contempt of court for fading to file Mr. Wdliams’s brief in a timely manner. We note that Mr. Wright filed the brief on May 26, 1998. We assess a fine of $250.00. A copy of this order will be forwarded to the Committee on Professional Conduct.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    Michael COATS and Rhonda Coats (now Wheeler) v. Jerry GARDNER
    97-1309
    970 S.W.2d 802
    Supreme Court of Arkansas
    Opinion delivered June 18, 1998

      Eddie N. Christian and Matthew Horan, for appellants.

      Thompson & Llewellyn, P.A., by: James M. Llewellyn, Jr., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellants, Michael Coats, and his former wife, Rhonda Coats (now Wheeler), appeal an order of the Crawford County Circuit Court dismissing their negligence complaint against appellee Jerry Gardner. In dismissing the complaint, the circuit court found that Mr. Coats’s injuries arose out of his employment with Mr. Gardner, and that the Coatses’ claim was barred by the election-of-remedies doctrine since they had received workers’ compensation benefits. The Coatses filed an appeal with the Arkansas Court of Appeals, which certified the case to this court under Ark. Sup. Ct. R. 1-2(d)(2), as involving an issue of significant public interest or a legal principle of major importance. We agree with the circuit court’s finding that the Coatses’ claim is barred by the election-of-remedies doctrine and affirm its decision.

Mr. Coats was the general manager of a TGI Fridays restaurant owned by VNE, Inc., a corporation of which Mr. Gardner was the principal shareholder. On the afternoon of October 23, 1994, Mr. Gardner planned to pilot his ultra-light airplane over the Arkansas River. He telephoned the restaurant and asked another employee to go along for the ride. When that employee declined, Mr. Coats asked to go along on the trip. During the flight, the airplane, which was capable of landing on both water and land, crashed. Because the plane’s right landing gear was down when Mr. Gardner attempted to land on the river, the nose dipped into the water and the plane began to flood. Although Mr. Coats was able to escape from the airplane, the river’s current drew him into the still-moving propeller, resulting in extensive, disfiguring facial injuries.

According to Mr. Coats, following the accident, while he was still in the hospital, Mr. Gardner and his attorney told him that his only chance for compensation for his medical bills was to file a workers’ compensation claim. Thereafter, Mr. Coats gave a recorded statement to VNE’s workers’ compensation carrier, Zenith Insurance Company, asserting that he and Mr. Gardner had discussed restaurant business during the trip. After Zenith’s investigation into the accident, it paid the Coatses temporary total disability benefits and medical benefits over a eighteen-month period totaling more than $70,000.00.

On June 18, 1996, the Coatses filed a tort action in Crawford County Circuit Court, claiming that Mr. Gardner’s negligence caused the plane to crash and resulted in Mr Coats’s injuries. They sought $5.53 million in damages and another $1.25 million for loss of consortium. Mr. Gardner answered and moved to dismiss, arguing in part that the Coatses had waived their rights to sue in tort when they sought and accepted workers’ compensation benefits. The circuit court dismissed the complaint. The Coatses appealed to the Court of Appeals, which certified the case to this court, asking us to clarify our cases regarding election-of-remedies.

As an initial matter, the Coatses contend that the circuit court erred in considering matters outside the complaint when ruling on Mr. Gardner’s motion to dismiss. The Coatses have abstracted excerpts from Mr. Gardner’s deposition, as well as responses to interrogatories and answers to production of documents, all of which the circuit court considered before ruling on the motion. It is well settled that, where the parties present affidavits and other matters outside the pleadings to the circuit court on a motion to dismiss, we can and will treat the motion as one for summary judgment. Cherepski v. Walker, 323 Ark. 43, 49, 913 S.W.2d 761 (1996); see also Ark. R. Civ. P. 12(b) and (c).

Turning to the merits, we discusssed the election-of-remedies doctrine most recently in Traveler’s Ins. Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382 (1997), in which the widow of an employee fatally injured in a trucking accident sued the employer and its insurance carrier, in circuit court for misrepresentation and outrage. Particularly, Mrs. Smith alleged that Travelers’ adjuster had misrepresented that an autopsy was required in order for her to receive workers’ compensation benefits, causing her to incur refrigeration costs and a delay in embalming that prevented her from having an open-casket funeral. Travelers filed a motion for summary judgment, claiming that Mrs. Smith had elected her remedy by accepting $32,910.00 in death compensation benefits. The circuit court denied the motion, reasoning that the Workers’ Compensation Act did not provide a remedy for the injuries that Mrs. Smith allegedly suffered. Travelers filed a petition for writ of prohibition in this court. While we denied the petition on the ground that the Act did not provide a remedy for Mrs. Smith’s alleged non-physical injury, we described the election-of-remedies doctrine as follows:

[T]he general rule as to election of remedies is that, where a party has a right to choose one of two or more appropriate but inconsistent remedies, and with full knowledge of all the facts and of his rights makes a deliberate choice of one, then he is bound by his election and cannot resort to the other remedy.

Travelers Ins. Co., 329 Ark. at 344 (quoting Lively v. Libbey Memorial Physical Medical Ctr., 317 Ark. 5, 9, 875 S.W.2d 507, 509 (1994)); see also Gentry v.Jett, 235 Ark. 20, 365 S.W.2d 736 (1962). In that case, we said that the election-offremedies doctrine would bar Mrs. Smith’s circuit court claims for her injury if it were shown that she “either received or could have received compensation under the Workers’ Compensation Act.” Travelers Ins. Co., 329 Ark. at 344 (citing Lively v. Libbey Memorial Physical Medical Ctr., supra; and Riverside Furniture Co. v. Rodgers, 295 Ark. 452, 749 S.W.2d 664 (1988)). Because Mrs. Smith had no remedy under the Act for her injury, she had no workers’ compensation remedy to elect in the first instance. Id.

In Western Waste Indus. v. Purifoy, 326 Ark. 256, 930 S.W.2d 348 (1996), an employee of a landfill operator filed a workers’ compensation claim for injuries resulting from her exposure to toxic chemicals sustained during the time of her employment. She recovered $12,500.00 in workers’ compensation benefits and signed a settlement agreement whereby she agreed that the money she received was a full, complete, and final payment and discharge of her employer’s liability to her for any past or future injuries or medical expenses. Nine months after the settlement, she filed a personal injury complaint against her employer in circuit court. The circuit court denied the employer’s motion to dismiss, and we granted the employer’s petition for writ of prohibition. In granting the writ, we stated that the employee had the option to pursue her claim for damages either in tort or under the Workers’ Compensation Act. Western Waste, 326 Ark. at 258. We further said that, once the employee made that election, she could not avail herself of the remedy not chosen. Id. However, it was not the pursuit of the claim in that case that constituted the election in Western Waste, but the receipt of a $12,500.00 settlement for the same injury for which she later sought damages in circuit court that barred the later claim.

In the present case, we conclude that the circuit court was correct in determining that the Coatses’ claim was barred by the election-of-remedies doctrine. As Professor Larson states, “[a] successful compensation claim will ordinarily bar a subsequent damage suit.” 6 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 67.32, at 12-159 (1997 and Cum. Supp. 1998). According to Professor Larson, the word “successful” must be taken to mean “successful not only in obtaining a compensation award but also in collecting it.” Id. at 12-174. In this case, the Coatses received a settlement of $70,000.00 for injuries arising out of the airplane accident. The circuit court appropriately concluded that the Coatses could not now seek redress for those same injuries by filing a tort claim. While the Coatses claim that the settlement was procured due to the fraud of Mr. Gardner, this is a matter for the Workers’ Compensation Fraud Investigation Unit, the entity charged with investigating such claims and reporting any findings to the Workers’ Compensation Commission. See Ark. Code Ann. § 11-9-106 (Repl. 1996). Based on the foregoing, we affirm the circuit court’s decision.

Affirmed.

Newbern, J., not participating.

       The airplane was built by Mr. Gardner and was owned by Sierra Hotel Corporation, a corporation of which Mr. Gardner and his wife, Vonda J. Gardner, owned all the outstanding stock.


text:
    Delcie FULTZ v. STATE of Arkansas
    CR 98-41
    972 S.W.2d 222
    Supreme Court of Arkansas
    Opinion delivered June 18, 1998

      Young & Finley, by: Dale W. Finely, for appellant.

      Winston Bryant, Att’y Gen., by: C. Joseph Cordi, Jr., Asst. Att’y Gen., for appellee.
   W.H. “Dub” Arnold, Chief Justice.

On June 30, 1997, appellant, Delcie Ruth Fultz, was convicted in the Boone County Circuit Court of (1) conspiracy to deliver the controlled substance methamphetamine; (2) possession of a controlled substance with the intent to deliver methamphetamine; and (3) possession of drug paraphernalia. On appeal, Fultz first challenges the trial court’s admission of evidence obtained during a warrantless search of her husband’s Pontiac Firebird. She also argues that the trial court erred in admitting evidence obtained pursuant to a search warrant that was based, in part, on suppressed evidence retrieved during a warrantless search of her purse. Second, Fultz contends that the trial court applied an erroneous standard for determining whether the Pontiac search was consensual. Third, Fultz argues that the trial court erred by failing to direct verdicts on the criminal-conspiracy and possession-with-intent-to-deliver charges. Fourth, she assigns as error the trial court’s admission of four witnesses’ testimony that she claims is inadmissible pursuant to Ark. R. Evid. 404(b).

The issues on appeal involve the interpretation of the Fourth Amendment of the United States Constitution, Article 2, section 15, of the Arkansas Constitution, and Ark. R. Evid. 404(b). Significantly, the State urges us, in interpreting the “plain-view” exception to the Fourth Amendment’s warrant requirement, to hold that Arkansas’ constitutional requirements regarding that exception should be construed consistently with Horton v. California, 496 U.S. 128 (1990), because the Arkansas constitution provides no greater protection than the Fourth Amendment. Formerly, we have declined to reach the issue of whether inadvertent discovery is an element of the plain-view exception under the Arkansas Constitution. See Wofford v. State, 330 Ark. 8, 25, 952 S.W.2d 646 (1997); Williams v. State, 327 Ark. 213, 219, 939 S.W.2d 264 (1997). Flowever, in light of the facts in the instant case, we now hold, consistent with Horton, that the Arkansas Constitution does not prohibit the warrantless seizure of evidence in plain view even though the discovery was not inadvertent. Moreover, finding no merit in appellant’s arguments, we affirm.

On September 3, 1996, Delcie Fultz’s husband, Anthony Wayne Fultz, admitted to police that his Pontiac Firebird was purchased with drug money and that it had been used to transport methamphetamine from California. On September 5, 1996, Harrison Police Department officers obtained a warrant for Mr. Fultz’s arrest, went to his home, and arrested him somewhere in the vicinity of his carport-kitchen door. Although witnesses’ testimony conflicts as to the precise location of the vehicle and whether it was within the curtilage of the home, Mrs. Fultz concedes that the vehicle was in “plain view” at the time of the arrest. One police officer testified that the car was “right there” when Mr. Fultz was arrested.

After Mr. Fultz informed police that there might be a gun in the Pontiac, the officers seized the car and searched it pursuant to the Harrison Police Department’s vehicle inventory policy. Although the record in Mr. Fultz’s case indicates that he consented to the search of the car, the instant record is unclear as to consent. In any event, the search was conducted at the Fultz’s residence and revealed, among other things, a sawed-off .410 shotgun, a semi-automatic AK rifle, and a pair of walkie-talkies. The officers also noted a strong odor of methamphetamine in the car.

During the search of Mr. Fultz’s car, Mrs. Fultz became belligerent and shouted profanities at the officers. She was questioned about any further firearms, particularly Mr. Fultz’s service revolver because he was a former police officer. She permitted one officer to come into the home to retrieve that gun. Two other officers followed, allegedly to protect the department’s “reputation” since a female subject was involved. At some point, one of the officers requested permission to search Mrs. Fultz’s purse. The police conducted a warrantless search of the purse, while Fultz remained silent. From the purse, the officers retrieved some plastic, square, clear boxes, which appeared to contain some white residue, purportedly methamphetamine. This evidence was identified and described in a subsequent affidavit for a search warrant.

When the police began to take Mr. Fultz to the station, Mrs. Fultz began to shout at the officers and threw a plastic glass. She was arrested for disorderly conduct and taken, in the Pontiac, to the police department. At this point, officers obtained a search warrant to search the home, including a small building located approximately forty to sixty feet from the house. Inside that building, police discovered cash, chemical residue, jars that tested positive for methamphetamine, documents including telephone numbers and evidence of drug trafficking, and evidence of a methamphetamine lab.

Mrs. Fultz objected to the evidence obtained pursuant to the search warrant because the warrant was based in part on the suppressed evidence discovered in her purse. Although the trial court suppressed evidence relating to the purse search, it found that the search warrant was valid and permitted admission of evidence obtained during the search of the car and the outbuilding. The trial court, over appellant’s objection, also admitted testimony of four witnesses evidencing appellant’s prior sales and concealment of methamphetamine. From these findings and appellant’s convictions, comes the instant appeal.

I. Admission of Evidence

A. Warrantless Search of Pontiac

First, Fultz challenges the trial court’s refusal to suppress evidence found in her husband’s Pontiac Firebird. Specifically, she argues that the search and seizure violated her federal and state constitutional rights. Notably, Article 2, section 15, of the Arkansas Constitution provides the same degree of protection as the Fourth Amendment. See Stout v. State, 320 Ark. 552, 557-58, 898 S.W.2d 457 (1995). When we review a trial court’s denial of a motion to suppress evidence, we view the evidence in the light most favorable to the State, make an independent determination based on the totality of the circumstances, and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Wofford, 330 Ark. at 17.

As a general rule, searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established exceptions. Those who seek to prove an exception must demonstrate that the exigencies of the situation made that course imperative and the burden is on that party to show its need. Fultz, 332 Ark. at 626 (citing Coolidge v. New Hampshire, 403 U.S. 443 (1971) (plurality opinion)). Moreover, when the appeal involves a challenge to the legality of a warrant-less search and seizure, the State has the burden of establishing an exception to the warrant requirement. See Wofford, 330 Ark. at 17.

Here, the State asserts that the officers were entitled to seize the Pontiac pursuant to the plain-view exception to the Fourth Amendment’s warrant requirement. When police officers are legitimately at a location and acting without a search warrant, they may seize an object in plain view if they have probable cause to believe that the object is either evidence of a crime, fruit of a crime, or an instrumentality of a crime. Arizona v. Hicks, 480 U.S. 321 (1987); Coolidge, 403 U.S. at 464-74. Significantly, even if the police did not inadvertently discover the object, the seizure does not violate the Fourth Amendment. Horton, 496 U.S. 128 (1990).

Similarly, the Arkansas Constitution provides the same constitutional safeguards as the Fourth Amendment. Assuming that the police do not violate the Fourth Amendment in arriving at the place where the object can be plainly viewed, to justify a warrantless seizure, first, the object must be in plain view and its incriminating character must be “immediately apparent.” Second, the officer must be lawfully located in a place to plainly view the object and must have a lawful right of access to the object. See Horton, 496 U.S. at 136-37. In short, inadvertent discovery is not a requirement of a warrantless seizure of evidence in plain view, and Article 2, section 15, of the Arkansas Constitution, is not violated merely because the discovery was not inadvertent.

Given the evidence that two days prior to the officers’ seizure and search of the car, Mr. Fultz admitted that he had used the car to transport methamphetamine from California and had paid for the Pontiac with drug money, the officers had probable cause to believe that the car was evidence of a crime and an instrumentality of a crime. Acting under the authority of an arrest warrant, the police were lawfully on the premises and in close proximity to the car at the time of arrest. Mr. Fultz’s indication to the police that a gun might be in the car provides additional compelling evidence. The officers were then entitled to perform an inventory search of the car after having legally seized it pursuant to the plain-view exception. In sum, given the totality of the circumstances, the trial court’s admission of the evidence seized pursuant to the Pontiac search was not clearly against the preponderance of the evidence.

B. The Search Warrant

Next, Mrs. Fultz challenges the validity of the search warrant and the admission of all evidence retrieved pursuant to it because the suppressed evidence discovered in her purse provided part of the probable cause for the affidavit for the search warrant. Although our initial inquiry might be whether the purse search was valid, assuming, arguendo, that it was invalid, we must determine whether the inclusion of that evidence in the affidavit defeats the warrant. In Williams v. State, 327 Ark. 213, 939 S.W.2d 264 (1997), this court held that offending information can be excised from a probable-cause affidavit to determine if the affidavit nevertheless supports the issuance of a search warrant, and evidence may be admissible if discovered through an independent source. Id., at 220 (citing Murray v. United States, 487 U.S. 533 (1988)). However, the warrant can be defeated if the officer’s motivation for the warrant arose from evidence discovered during the illegal search. This court also noted in Williams that the “relative probative import” of the illegally obtained information should be considered as compared to “all other information known to the officers.” Id., at 221 (citing Murray, 487 U.S. 533; United States v. Restrepo, 966 F.2d 964 (5th Cir. 1992), cert. denied, 506 U.S. 1049 (1993)).

Applying these factors in the instant case and excising the evidence discovered in the purse, the search warrant was, nevertheless, independently supported by probable cause. When viewed in the light most favorable to the State, the evidence in the purse was of little probative value compared to all of the other information known by the officers. For example, based on Mr. Fultz’s statements and the smell in the car, there was ample information to independently support the warrant. Arguably, the evidence in the purse was of so little probative value that neither the purse nor its contents were seized. The trial court did not err in finding that the evidence in the purse was not the primary motivation for the officer’s obtaining a warrant. Accordingly, its refusal to suppress the evidence found during the execution of the search warrant was not erroneous.

II. Consent

We do not reach the merits of appellant’s second point on appeal, challenging the trial court’s finding that consent had been given to the Pontiac search. Neither do we consider the trial court’s denial of appellant’s motion to suppress the evidence found during that search. Although consent is a valid justification to a warrantless search, we have held that the instant seizure and inventory search of the Pontiac was valid under the plain-view doctrine. Accordingly, the issue of consent is irrelevant.

III. Sufficiency of Evidence

A. Conspiracy to Deliver Methamphetamine

At the conclusion of the State’s case the appellant moved for the trial court to dismiss the conspiracy charge, arguing that there was “no proof of a conspiracy.” The State correcdy contends that Fultz failed to preserve this issue for appeal. A general motion for directed verdict does not preserve for appeal issues regarding sufficiency of the evidence. See Walker v. State, 318 Ark. 107, 109, 883 S.W.2d 831 (1994). Fultz’s directed-verdict motion failed to advise the trial court of any specific element of the crime of conspiracy that the State failed to prove. Accordingly, we affirm the trial court on this point.

B. Possession of Methamphetamine with Intent to Deliver

When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. See Freeman v. State, 331 Ark. 130, 131-32, 959 S.W.2d 400 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Id. When viewed in the light most favorable to the State, we hold that the trial court had substantial evidence to support the possession-with-intent-to-deliver conviction.

First, the evidence demonstrated that Fultz had at least constructive possession over the drugs. According to Darrough v. State, 330 Ark. 808, 811, 957 S.W.2d 707 (1997), the State need not prove that the accused physically possessed the contraband to sustain a possession conviction. Indeed, if the location of the contraband was under the dominion and control of the accused, it is deemed constructively possessed. Id. (citing Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994); Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991)). Although constructive possession can be implied when the contraband is in the joint control of the accused and another, joint occupancy, alone, is insufficient to establish possession or joint possession. Under the instant facts, the State must prove some additional factor linking the appellant to the contraband. See id. Specifically, the State must prove that the appellant exercised care, control, and management over the contraband, and that she knew the matter possessed was contraband. See id. (citing Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988)).

Here, the State offered evidence showing that Fultz helped her husband transport, conceal, and sell methamphetamine. For example, Roger Brown testified that appellant sold him methamphetamine in the earlier part of 1996, and that appellant told him that she was going to pick her husband up at the airport when he returned to Arkansas from a drug pick-up in California. Jason Smith testified that appellant sold him methamphetamine six to seven months prior to appellant’s trial. Additionally, Tiffany Cox testified that she held some of appellant’s methamphetamine for four days while Mrs. Fultz went to California to get her husband, who had been met there by Drug Enforcement Agency officers. Cox also testified that when appellant returned, she gave Cox an eight-ball of methamphetamine in exchange for holding the drugs. Cox’s testimony regarding the temporary concealment also demonstrated that appellant knew that the methamphetamine was contraband. Accordingly, viewed in the light most favorable to the State, the evidence was sufficient to support the conviction.

IV. Rule 404(b) Evidence

Finally, appellant argues that the trial court erred in admitting the testimony of four witnesses: Roger Brown, Joe Falconburg, Jason Smith, and Tiffany Cox. As to Messrs. Brown and Falconburg, the appellant failed to object to their testimony and, thus, has not preserved those issues for appeal. See Mackey v. State, 329 Ark. 229, 231, 947 S.W.2d 359 (1997). Accordingly, the trial court’s admission of their testimony is affirmed. However, appellant made timely objections to Mr. Smith’s and Miss Cox’s testimony based on Rule 404(b), which provides that evidence of other crimes, wrongs, or acts is generally inadmissible to prove character and to demonstrate that a person has acted in conformity with that character. Alternatively, Rule 404(b) provides that such evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Moreover, in a conspiracy case, evidence of an accused’s prior crimes may be admissible under Rule 404(b) as direct evidence of the accused’s participation in the conspiracy. See Henry v. State, 309 Ark. 1, 7, 828 S.W.2d 346 (1992). On appeal, we will not reverse a trial court’s decision regarding admission of evidence absent a manifest abuse of discretion. Munson v. State, 331 Ark. 41, 48-9, 959 S.W.2d 391 (1998) (citing Jarrett v. State, 310 Ark. 358, 833 S.W.2d 779 (1992)).

Here, Smith and Cox testified regarding Mrs. Fultz’s participation in a conspiracy to deliver methamphetamine and her intention to possess and deliver methamphetamine. Specifically, Smith testified that appellant sold him methamphetamine seven months before appellant’s trial, and Cox testified that appellant concealed methamphetamine with her during the time her husband was under investigation. In light of this testimony, the trial court could properly find direct evidence of appellant’s participation in the conspiracy. Accordingly, under these facts, the trial court did not

In conclusion, we affirm the trial court on all points.

       During a separate trial involving the same incident, Mr. Fultz was convicted of (1) possession of methamphetamine with intent to deliver; (2) simultaneous possession of drugs and firearms; (3) conspiracy to deliver methamphetamine; (4) criminal use of a prohibited weapon; and (5) possession of drug paraphernalia. Specifically challenging the seizure and search of the Pontiac, Mr. Fultz appealed from his simultaneous-possession-of-drug-and-firearms and criminal-use-of-a-prohibited-weapon convictions. We affirmed those convictions in Fultz v. State, 332 Ark. 623, 966 S.W.2d 892 (1998).


author: Tom Glaze, Justice.

text:
    David MITCHAM v. FIRST STATE BANK of CROSSETT, Arkansas, Blount, Inc., and TAC Equipment Company, Inc.
    97-1541
    970 S.W.2d 267
    Supreme Court of Arkansas
    Opinion delivered June 18, 1998

      Compton, Prewett, Thomas & Hickey, P.A., by: Floyd M. Thomas, Jr., for appellant.

      Shackleford, Phillips, Wineland & Ratcliff, P.A., by: Teresa Wineland, for appellee Blount, Inc.

      Tim A. Womack, P.A., by: Tim A. Womack, for appellee TAC Equip. Co.
   Tom Glaze, Justice.

This case presents a significant issue regarding prejudgment interest, and its application to a purchase contract which a jury found had been revoked by the purchaser. The appellant David Mitcham is the purchaser who revoked his acceptance of certain logging equipment that he had bought from TAC Equipment Company, Inc. After the jury made its revocation determination, the trial court denied Mitcham’s additional request for prejudgment interest. Mitcham brings this appeal, asserting the trial court erred in denying him prejudgment interest.

The relevant facts leading to this litigation are undisputed. In August of 1993, Mitcham purchased a log loader, trailer, and delimber from TAC. The loader was manufactured by appellee Blount, Inc. The purchase price for the equipment was $115,000.00, and Mitcham financed his purchase by obtaining a loan from the First State Bank of Crossett.

After his purchase, Mitcham used the equipment and immediately experienced problems with the loader. TAC’s mechanics were unsuccessful in their attempts to repair it. Sometime in June 1994, Mitcham informed the owners of TAC that he either wanted his money returned or he wanted to trade the loader for another one. However, the TAC owners offered Mitcham no further help. A representative of Blount did agree to have its mechanics fix the loader, but told Mitcham it would be the third week in July 1994, before their mechanics could do so. Mitcham agreed, stating that he “had put up with it this long, maybe I can make it three more weeks.” Blount’s mechanics never showed. On November 8, 1994, Mitcham parked the loader in the front yard of his father’s house located alongside Highway 82 and hung a “lemon” sign on it.

After November 1994, Mitcham defaulted on his loan payments, and on February 14, 1996, the Bank filed suit to collect on its promissory note and security agreement. Mitcham filed an answer, and additionally filed a third-party complaint against TAC and Blount, alleging that the loader was defective and that TAC and Blount had violated the implied warranties of merchantability and fitness for a particular purpose. Mitcham further sought consequential damages, in lost profits, and also asked for the revocation of acceptance of the equipment and the full refund of the purchase price of the equipment. Prior to trial, on March 14, 1997, the Bank sold the logging equipment for $32,000.00 at public auction to Blount, the highest bidder.

On March 31, 1997, Mitcham’s dispute with the Bank, TAC, and Blount went to trial, and the jury returned verdicts in Mitcham’s favor against TAC and Blount, and in First State Bank’s favor against Mitcham. Mitcham was awarded the loader’s fair market value of $79,542.89, and $5,000.00 in lost profits. The Bank was awarded $79,542.85. Because Mitcham was entitled to proceed against TAC and Blount on alternative theories of breach of contract and revocation of acceptance, the jury, on a special interrogatory, found Mitcham was entitled to revoke his acceptanee of the equipment. Accordingly, the trial court granted Mitcham’s motion to amend his original judgment which allowed him to recover damages under his revocation-of-acceptance theory. Prior to the jury’s findings and verdicts, the parties had already stipulated that, if the jury found Mitcham had justifiably revoked acceptance of the equipment, he would be entitled to judgment for the purchase price, $115,000.00, less the $32,000.00 amount Blount had paid the Bank when the Bank sold the equipment. Thus, the trial court amended the judgment and awarded Mitcham damages in the amount of $83,000.00, plus the $5,000.00 he had been granted in lost profits. TAC and Blount were found jointly and severally liable for the $88,000.00 amount, plus 10% postjudgment interest.

In addressing Mitcham’s request for 6% prejudgment interest, the trial court expressly denied it, stating there was insufficient certainty as to the date of revocation and the amount of damages required “to meet the standards permitting prejudgment interest.” On appeal, Mitcham argues the trial court erred in deciding there was no certainty in the amount of damages because such a ruling overlooked the parties’ stipulation that, if judgment was entered on a revocation-of-acceptance theory, judgment would be in the amount of the $115,000.00 purchase price less the $32,000.00 realized from the sale of the logging equipment at the Bank’s public auction. Mitcham submits that, once the jury found Mitcham was entitled to revocation, he then was entitled to the liquidated (and stipulated) amount of $83,000.00.

Mitcham is correct, at least to a point. From the evidence, the jury determined that Mitcham was entitled to revoke acceptance of the logging equipment, and that being so, a method for determination of the equipment’s value existed, per the parties’ stipulation, and prejudgment interest could be easily ascertained. See Woodline Motor Freight, Inc. v. Troutman Oil Co., 327 Ark. 448, 938 S.W.2d 565 (1997). However, the time of Mitcham’s loss or injury was never determined by the jury or stipulated by the parties, nor was the jury asked to make this determination. This is the point at which Mitcham’s prejudgment argument fails. As we have held repeatedly, if the damages are not by their nature capable of exact determination, both in time and amount, prejudgment interest is not an item of recovery. Id.; Lovell v. Marianna Federal Savings and Loan Ass’n, 267 Ark. 164, 589 S.W.2d 577 (1979). (Initial emphasis in original, latter emphasis added.)

Under Arkansas’s Uniform Commercial Code, a revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. Ark. Code Ann. § 4-2-608 (Repl. 1991). Significant to the instant case, such revocation of acceptance is not effective until the buyer notifies the seller of it. Id. Here, as previously mentioned, while the parties requested the jury to find whether Mitcham was entitled to revocation, the jury was never asked to decide when the revocation and time of loss took effect.

Mitcham recognizes that he is entitled only to interest after he communicated to TAC and Blount his intent to revoke his acceptance of the equipment, but in doing so, he cannot point to an exact date — a burden that was his to prove. He rehashes the evidence, showing that TAC and Blount, sometime in June 1994, inspected Mitcham’s loader and that Mitcham announced he wanted a refund or to trade the equipment. However, Mitcham had used the equipment for ten months and agreed to continue its use until Blount’s mechanics would try to repair it. Mitcham waited until November 8, 1994, and when the mechanics never showed, he placed the equipment with a “lemon” sign on it in his father’s yard alongside Highway 82. There is no evidence, however, that, on this November 8 date or afterwards, he gave TAC or Blount a notice of revocation. While Mitcham argues the November 8, 1994 date should be designated the exact time of his loss or injury, we believe the trial court was correct in ruling that Mitcham’s actions prior to and after that date failed to reflect the type of certainty of notice a seller is warranted in order to invoke an award of prejudgment interest.

For the above reasons, we affirm.

       When the trial court later amended Mitcham’s judgment against TAC and Blount, it ruled the Bank’s judgment would be revisited so as to assure justice was done, and an increased amount was awarded it against Mitcham based on another loan Mitcham had with the Bank. This amended judgment is not at issue in this appeal, but is noted to reflect that all claims before the trial court were decided.


author: Donald L. Corbin, Justice.

text:
    Janet CALANDRO and Dale H. Suezaki v. John W. PARKERSON
    98-38
    970 S.W.2d 796
    Supreme Court of Arkansas
    Opinion delivered June 18, 1998

      T.B. Patterson, Jr., P.A., for appellants.

      Cross, Gunter, Witherspoon & Galchus, P.C., for appellee.
   Donald L. Corbin, Justice.

Appellants Janet Calandro and Dale H. Suezaki appeal the judgment of the Garland County Circuit Court dismissing with prejudice their claim of deceit against Appellee John W. Parkerson and, also, granting summary judgment in favor of Appellee. This is the second appeal of this case, following our partial reversal and remand to the trial court. See Calandro v. Parkerson, 327 Ark. 131, 936 S.W.2d 755 (1997) (Calandro I). Hence, our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. 1-2(a) (7). Appellants raise two points for reversal. We find no error and affirm.

We set out the relevant facts of this case in considerable detail in Calandro I:

On April 29, 1994, appellants filed their complaint against appellee, an attorney practicing in Hot Springs. They alleged that, in the spring of 1991, they had desired to open a convenience store, had located a site for the business, and had found a prospective landlord, Kwik Lane Management Company, which had agreed to rent the property and necessary equipment to them. Appellants obtained a proposed lease agreement from Jim Davis, a representative of the purported lessor, and took it to appellee.
Upon appellee’s recommendation, appellants incorporated as U and Me, Inc. Thereafter, appellee redrafted the lease agreement, which was executed on May 1, 1991, by Kwik Lane Management Corporation as lessor and U and Me, Inc., as lessee. The business had been in operation for approximately five months when, in September of 1991, appellants were advised that Kwik Lane was not the owner of the business premises; rather, Southern Farm Bureau Life Insurance Company owned the real property and Worthen Bank owned the equipment. It was appellants’ position that appellee’s failure to inquire as to the status of the lessor and the title of the property leased constituted professional negligence, which proximately caused them to lose possession and use of the premises and equipment.
According to appellants’ complaint, in October of 1991, appellee agreed to assist them in obtaining leases for the real property and the equipment and promised that he would “get back to them.” On or about January 2, 1992, appellee, knowing that appellants would rely on his statement, told appellant Calandro that the real property had been sold, when, in fact, appellee knew that the property had not been sold. Relying on appellee’s statement, appellants vacated the premises and allowed Worthen to take the equipment. Appellants claimed that, as a result of appellee’s deceit as to the sale of the business premises, they voluntarily surrendered their rights in the equipment and fixtures necessary to operate their store, which closed in January of 1992. Two years later, on January 24, 1994, U and Me’s corporate charter was revoked for nonpayment of franchise taxes. Appellants asserted that appellee’s negligence and malfeasance constituted a breach of the attorney-client agreement, entitling them to a return of attorney’s fees and costs.

327 Ark. 131, 133-34, 936 S.W.2d 755, 756-57. Appellants originally sued Appellee for legal malpractice, breach of contract, and deceit. The trial court granted summary judgment to Appellee on all three claims. We affirmed the trial court’s ruling on the claims of legal malpractice and breach of contract in Calandro I, holding that those claims could only have been brought by the client-corporation, not the individual Appellants. Hence, because the corporation’s charter had been revoked, we concluded that it had lost its capacity to sue. We reversed and remanded for further factual development of the claim of deceit, for which no privity of contract is required.

On remand, the trial court again ruled in favor of Appellee, this time dismissing Appellants’ claim for their failure to comply with the court’s order compelling discovery, pursuant to ARCP Rule 37. Additionally, the trial court granted summary judgment to Appellee due to Appellants’ failure to meet proof with proof in support of their claim of deceit. This appeal followed.

On appeal, Appellants argue that the trial court erred and abused its discretion in dismissing their deceit claim based upon discovery violations. They contend that such a sanction was too harsh in proportion to the violations. They argue further that the trial court erred in granting summary judgment to Appellee, as they assert that there are material issues of fact still to be resolved.

Facts

The record reflects that on June 5, 1997, Appellee filed a motion to compel discovery. The motion reflected that Appellee had sent interrogatories to Appellants on April 8, 1997, and that no response had been made as of the date the motion to compel was filed. The motion reflected further that, approximately two weeks before the motion was filed, Appellee’s attorney had contacted Appellants’ attorney and had received assurances from Appellants’ attorney that the answers would be forthcoming. On June 6, 1997, the trial court issued an order granting Appellee’s motion to compel the discovery. The order directed Appellants to fully and completely respond to the interrogatories and the request for production on or before June 20, 1997.

Appellants filed their answers with the circuit court clerk on June 20, 1997. On June 23, 1997, Appellee filed a motion to dismiss pursuant to Rule 37, asserting that he had not yet received Appellants’ answers, and that they were thus in violation of the trial court’s order that the information be provided to him on or before June 20, 1997. On June 25, 1997, Appellee filed a supplemental motion to dismiss, asserting that, although he had received the answers on June 23, 1997, they were “largely evasive and incomplete.” Appellee asserted further that the objections made by Appellants to four interrogatories were untimely and thus waived, as they were not raised within thirty days of service. On August 13, 1997, Appellee filed a motion for summary judgment, asserting, among other things, that from the evidence already taken, including various affidavits and depositions of the parties, there was no evidence of intentional deceit on his part.

On September 5, 1997, the trial court conducted a hearing on both motions, during which Appellants’ attorney attempted to submit an amended complaint and a response to Appellee’s motion for summary judgment, which contained affidavits and a brief in support of the response. The trial court refused to consider the offered documents, ruling that Appellants had failed to comply with the provisions of ARCP Rule 56(c), which states that the adverse party has the right to serve opposing affidavits prior to the day of the hearing on the motion. The trial court heard considerable argument from both sides and, on September 8, 1997, issued a letter order granting both motions. The trial court entered an order of record on September 17, 1997. Regarding the motion to dismiss, the trial court found that Appellants were in violation of the court’s order directing them to fully and completely answer Appellee’s interrogatories, that their failure to comply with the court’s order was willful, and that dismissal of the case was appropriate as a sanction for such violations, as provided in Rule 37(b). The trial court accordingly awarded Appellee attorney’s fees in the amount of $300, also pursuant to Rule 37. Additionally, the trial court ruled that the motion for summary judgment was supported by affidavits and that Appellants had not filed a response to the motion prior to the hearing or offered any evidence rebutting those affidavits.

Dismissal for Discovery Violations

For their first point for reversal, Appellants argue that the trial court abused its discretion by dismissing their claim of deceit for failure to comply with the court’s order compelling discovery. They assert that there was no significant lack of compliance with discovery that would merit dismissal of their claim. We disagree.

Rule 37 (a) (2) provides that if a party fails to answer an interrogatory submitted under ARCP Rule 33, “the discovering party may move for an order compelling an answer[.]” Subsection (a)(3) of Rule 37 provides that “an evasive or incomplete answer or response is to be treated as a failure to answer or respond.” Subsection (b)(2)(C) of that rule provides that if a person fails to obey an order to provide or permit discovery, the trial court may, among other permissible sanctions, issue an order dismissing the action.

The imposition of sanctions for the failure to provide discovery rests in the trial court’s discretion, and this court has repeatedly upheld the trial court’s exercise of such discretion in fashioning severe sanctions for flagrant discovery violations. Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992) (citing Rodgers v. McRaven’s Cherry Pickers, Inc., 302 Ark. 140, 788 S.W.2d 227 (1990) and Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989)). There is no requirement under Rule 37, or any of our rules of civil procedure, that the trial court make a finding of willful or deliberate disregard under the circumstances before sanctions may be imposed for the failure to comply with the discovery requirements. Cook v. Wills, 305 Ark. 442, 808 S.W.2d 758 (1991) (citing Cagle v. Fennel, 297 Ark. 353, 761 S.W.2d 926 (1988)). Here, however, the trial court specifically found that Appellants had willfully failed to comply with its order.

This court recently discussed the use of sanctions for discovery violations in Rush v. Fieldcrest Cannon, Inc., 326 Ark. 849, 934 S.W.2d 512 (1996). There, the trial court found that the appellant’s pattern of conduct in ignoring its orders was for the improper purpose of harassing the appellees and delaying the litigation. Deferring to the trial court’s superior position to judge the appellant’s actions, this court held that the trial court did not abuse its discretion in dismissing the appellant’s case on the ground that she had failed to comply with the court’s orders requiring her to narrow her list of expert witnesses. In support of the trial court’s dismissal, this court cited sound considerations of public policy:

While we recognize that dismissal is the most severe of sanctions, we are persuaded by the rationale of the District of Columbia Court of Appeals on this point:
[I]t is the plaintiff that is being sanctioned here. Appellant, as plaintiff, chose to utilize the court system to try to redress wrongs that had allegedly been done to her. When invoking such aid, a plaintiff should be prepared and willing to follow the rules that keep that system running in an orderly and efficient manner. Noncompliance with court orders and rules may cause the system to bog down and may adversely affect other litigants. When a plaintiff is personally responsible for this type of delay, he or she prejudices not only the defendant but also the ability of other persons ■ — • persons that are doing what is necessary to follow the rules to utilize the system.

Id. at 855-56, 934 S.W.2d at 516 (quoting Perry v. Sera, 623 A.2d 1210, 1219 (D.C. App. 1993) (footnotes omitted) (emphasis added)). This court held further that it is crucial to our judicial system that trial courts retain the discretion to control their dockets. Id. (citing Thompson v. Erwin, 310 Ark. 533, 838 S.W.2d 353 (1992); Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989)).

Here, the record reflects that the interrogatories were first sent to Appellants on April 8, 1997, and that they went unanswered for well over thirty days. At some point prior to June 5, 1997, Appellee’s attorney attempted to compel Appellants’ answers by speaking with their attorney, who assured Appellee’s attorney that such answers would be forthcoming. After two more weeks had passed, Appellee filed a motion to compel the discovery, and it was granted by the trial court the following day. The order reflected that Appellants “are directed to fully and completely respond to the Interrogatories and Request for Production on or before June 20, 1997.” Appellants filed their answers on June 20, 1997, with the court clerk; however, the answers were not received by Appellee until June 23, 1997.

Furthermore, the answers submitted by Appellants were not full and complete as ordered by the trial court. Appellants objected to several interrogatories, namely numbers 1, 28, 34, and 40, and number 27 was not answered at all. Interrogatory number 1 asked Appellants to list each meeting, conversation, or contact they had with Appellee after the incorporation of U and Me, Inc., specifying the date, length, purpose, and result of such meetings. Appellants objected to the question, alleging that it was “impossible to answer in its present form, because it calls for information not within the capability of [Appellants] to remember, and it is not of a type that was recorded in the course of business.” Appellants did, however, offer an answer to the question, making reference to the contacts described in the complaint and their depositions. They also indicated that if they should remember more contacts with Appellee, they would supplement the answer. No answers were ever supplemented.

Interrogatory number 28 asked Appellants to identify any documents that they had personally executed subsequent to the original lease that they claimed established a personal interest in the business premises and fixtures. Appellants objected on the basis that “[t]he form of this question is improper.” Interrogatory number 34 asked Appellants to state how much they claimed in punitive damages. Appellants again objected, this time asserting that the question called for a legal conclusion. Lastly, interrogatory number 40 asked Appellants to identify any persons who had helped them prepare their answers to the interrogatories and how those persons had gained such information. Appellants objected that the information sought was protected by the attorney-client privilege.

Appellee asserts that the foregoing objections were untimely raised and, as such, Appellants failed to comply with the trial court’s order. We agree. Rule 33(b) provides in relevant part:

(3) The party upon whom the interrogatories have been served shall serve a copy of the answers, or objections within 30 days after the service of the interrogatories .... (4) All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party’s failure to object is excused by the court for good cause shown. (5) The party submitting the interrogatories may move for an order under Rule 37(a) with respect to any objection to or other failure to answer an interrogatory. [Emphasis added.]

Similarly, any party claiming a privilege to refuse to answer interrogatories may obtain a protective order under ARCP Rule 26(c), which would protect the party from disclosure of certain matters. Dunkin v. Citizens Bank of Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987). Rule 37(d) provides that the failure to serve answers to interrogatories may not be excused on the ground that the discovery sought is objectionable unless the party failing to provide the discovery has applied for such a protective order. Id.

Here, the objections made by Appellants to the interrogatories were untimely, given that they were not raised within thirty days after Appellants were served with the interrogatories. In fact, the objections were not made for some two and one-half months after service. Nor did Appellants apply for a protective order pursuant to Rule 26(c) on the ground that the discovery sought was objectionable. As such, their failure to serve full and complete answers to the interrogatories could not be excused under Rule 37(d).

In addition to those unanswered interrogatories, Appellee contends that a great number of the remaining answers are evasive and incomplete. By way of illustration only, we describe two of those answers. Interrogatory number 11 asked Appellants to:

Describe how the fixtures on which Worthen Bank held a security interest were distinguished from the assets of U and Me, Inc. for purposes of the sale to Coulson Oil, describing the date and identity of those participating in the inventory.

Appellants answer reflected:

We took our inventory and equipment and left behind what was not ours, after [Appellee] lied to us and persuaded us to move out.

Interrogatory number 25 asked Appellants to:

Differentiate between any losses which you contend are attributable to U and Me, Inc. as opposed to those losses which you contend are personal which were caused by the alleged misrepresentation of [Appellee], Provide a detailed explanation of your basis for the differentiation.

Appellants’ answer is as follows:

At the time we formed the corporation, it had nothing, and when we were done, it had nothing. We lost everything we put into it, including our money, our time, and our efforts. Ultimately, because it started at zero, the corporation just failed. We took all the losses.

We agree with Appellee that these answers are, at a minimum, incomplete, if not evasive. It is clear that these answers are nonresponsive, as both questions asked Appellants to distinguish between various assets and losses. Moreover, the information requested by interrogatory number 25, regarding the segregation of personal losses from those sustained by the corporation, was of crucial importance in light of our ruling in Calandro I that limited the case on remand to Appellants’ claim for individual damages resulting from the alleged deceit.

Accordingly, we cannot say that the trial court abused its discretion in dismissing the case for Appellants’ flagrant failure to comply with the court’s directive to provide full and complete discovery to Appellee. The trial court was in a superior position to judge the actions or motives of the litigants, and we will not second-guess its ruling. The fact that the sanction imposed by the trial court was undoubtedly final and severe is of no consequence, as Rule 37 specifically provides for dismissal of the action where a party fails to comply with an order to provide discovery. Appellants were the plaintiffs in this case and, as such, they chose to utilize the court system to attempt to redress alleged wrongs. To allow them to bog down the judicial system through their delay and willful noncompliance with the trial court’s order would be imprudent. We thus affirm the trial court’s dismissal with prejudice of Appellants’ deceit claim.

Because we affirm the trial court’s decision to dismiss Appellants’ claim of deceit, we need not address the second point pertaining to the trial court’s grant of summary judgment.

Affirmed.

       During the hearing on the motions, Appellants’ attorney claimed that the answer to interrogatory number 27 was omitted by accident.


text:
    L.H. v. STATE of Arkansas
    97-1406
    973 S.W.2d 477
    Supreme Court of Arkansas
    Opinion delivered June 18, 1998

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Kelly S. Terry, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant L.H. appeals the order of the Craighead County Chancery Court, Western District, Juvenile Division, adjudicating him delinquent of the offense of battery in the second degree, a Class D felony, and placing him on probation. For reversal, Appellant argues that the chancellor erred in refusing to order that the adjudication record be sealed and expunged pursuant to Ark. Code Ann. § 16-90-901 (Supp. 1997), upon successful completion of his probation. This appeal presents an issue of first impression, requiring this court to interpret an act of the General Assembly; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(1) and (6). We find no error and affirm.

The record reflects that on June 2, 1997, the State filed a petition in juvenile court, alleging that on or about May 27, 1997, Appellant committed the offense of second-degree battery by repeatedly hitting the victim on his previously injured shoulder. Pursuant to an arrangement with the prosecutor, Appellant pleaded true to the petition. Appellant was thus adjudicated delinquent by the chancellor and placed on probation through January 29, 1998, the date of his eighteenth birthday. Appellant was also ordered to pay court costs, probation fees, and victim restitution in the amount of $127.

Appellant moved the chancellor to seal and expunge the record of this juvenile adjudication pursuant to section 16-90-901, upon the successful completion of his probation. The chancellor denied the motion, ruling that section 16-90-901 applies only to criminal proceedings in circuit court, not to juvenile delinquency proceedings. The chancellor ruled that because Appellant had not been charged and sentenced as an adult for the felony offense, section 16-90-901 did not apply. Instead, the chancellor determined that the adjudication record was to be retained and preserved as provided in Ark. Code Ann. § 9-27-309 (Supp. 1997). On appeal, Appellant argues that the chancellor erred in refusing to grant his motion to seal and expunge his juvenile record under section 16-90-901. We disagree.

Before reaching the merits of the point on appeal, we must first address two matters of procedural housekeeping. The first matter concerns Appellant’s failure to abstract the adjudication order. The general rule is that the judgment or order appealed from is an essential part of the abstract on appeal. See Winters v. Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). Arkansas Supreme Court Rule 4-2 (b)(2) provides that the failure to abstract those material parts of the record needed for a review of the issues on appeal may result in this court’s summarily affirming the ruling of the trial court. Here, a photocopy of the adjudication order is attached to the end of Appellant’s brief. Even though such attachment is not a substitute for proper abstracting, see Ark. Sup. Ct. R. 4-2(a)(6), we will address the merits of Appellant’s point on appeal, as we are able to glean sufficient information from the abstract of the chancellor’s bench ruling.

The second matter of housekeeping involves the Appellant’s ability to appeal the chancellor’s order of punishment, given that Appellant, in essence, pleaded guilty to the allegations contained in the petition for delinquency. Generally, there is no right to an appeal from a plea of guilty. Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). Arkansas Rule of Criminal Procedure 24.3 provides for appeal from a guilty plea or a plea of nolo contendere under certain circumstances, none of which apply here. This limited right of appeal from a guilty plea also pertains to appeals from juvenile court, as the rules of criminal procedure are applicable to juvenile delinquency proceedings. See Ark. Code Ann. § 9-27-325(f) (Supp. 1997); Mason v. State, 323 Ark. 361, 914 S.W.2d 751 (1996). Where, however, an appeal from a plea of guilty raises only an issue of sentencing, rather than requiring a review of the plea itself, this court will entertain such an appeal. Hill, 318 Ark. 408, 887 S.W.2d 275. See also Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995). Accordingly, the issue raised by Appellant is proper for review by this court.

This court has recently delineated the rules of statutory construction and interpretation in Reed v. State, 330 Ark. 645, 649, 957 S.W.2d 174, 176 (1997):

Statutes relating to the same subject should be read in a harmonious manner if possible. City of Ft. Smith v. Tate, 311 Ark. 405, 844 S.W.2d 356 (1993). All legislative acts relating to the same subject are said to be in pari materia and must be construed together and made to stand if they are capable of being reconciled. Id. We adhere to the basic rule of statutory construction, which gives effect to the intent of the legislature, making use of common sense and giving the words their usual and ordinary meaning. Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993). In attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the subject. Tate, 311 Ark. 405, 844 S.W.2d 356.

Additionally, it is fundamental that a general statute does not apply and must yield when there is a specific statute addressing a particular subject matter. Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997); Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Cozad v. State, 303 Ark. 137, 792 S.W.2d 606 (1990).

The two statutes at issue in this case are section 16-90-901 and section 9-27-309. Section 16-90-901, which Appellant urges requires prompt expungement of his juvenile record, provides:

(a) As used in §§ 5-64-407, 5-4-311, 16-90-601, 16-90-602, 16-90-605, 16-93-301 — 16-93-303, and 16-93-1207, “expunge” shall mean that the record or records in question shall be sealed, sequestered, and treated as confidential in accordance with the procedures established by this subchapter.
(b) Unless otherwise provided by this subchapter, “expunge” shall not mean the physical destruction of any records.

Appellant’s reliance on the purported benefits of this section is misplaced, as it is readily apparent that section 16-90-901 provides no substantive rights of expungement; rather, it merely defines the term “expunge” as it is used in certain enumerated code provisions, none of which apply to the facts of this case. Moreover, the sentencing provisions contained in those statutes referenced in section 16-90-901 do not apply to delinquency proceedings in juvenile court; rather, they apply to criminal offenses charged in circuit court or municipal court.

Section 9-27-309, on the other hand, specifically provides for the disclosure of certain juvenile records and the expungement of juvenile adjudication records. That section provides in part:

(a) All records may be closed and confidential within the discretion of the court, except:
....
(2) Records of delinquency adjudications for which a juvenile could have been tried as an adult shall be made available to prosecuting attorneys for use at sentencing if the juvenile is subsequently tried as an adult or to determine if the juvenile should be tried as an adult.
(b) Records of delinquency adjudications for which a juvenile could have been tried as an adult shall be kept for ten (10) years after the last adjudication of delinquency or the date of a plea of guilty or nolo contendere or finding of guilt as an adult. Thereafter they may be expunged. The court may expunge other juvenile records at any time and shall expunge all the records of a juvenile upon his twenty-first birthday, in other types of delinquency, dependency-neglect, or families in need of services cases. For purposes of this section, “expunge” means to destroy. [Emphasis added.]

Considering the plain language of section 9-27-309, and giving the words their common and ordinary meaning, it is clear that the legislature intended to specifically provide for the retainment of delinquency records for offenses in which the juvenile could have been tried as an adult for a period of ten years from the date of the juvenile’s last adjudication of delinquency. The stated purpose for retaining those records is to allow prosecutors to use them to enhance the juvenile’s sentence, in the event the juvenile is charged as an adult with a criminal offense, or to assist in the determination of whether to charge the juvenile as an adult for subsequent offenses. Thereafter, the records may be expunged.

From our review of both statutes, we arrive at the inescapable conclusion that the expungement of records envisioned by section 16-90-901 does not apply to the facts and circumstances of this case. Instead, section 9-27-309, which is part of the Juvenile Code, applies here. Appellant was seventeen years old at the time that he committed the offense of second-degree battery, a Class D felony; hence, he could have been charged with that offense in circuit court as an adult. See Ark. Code Ann. § 9-27-318(b)(1) (Supp. 1997). Accordingly, because Appellant was adjudicated delinquent of an offense for which he could have been charged as an adult, the specific expungement provisions contained in section 9-27-309 control over the more general provisions for the expungement of criminal records found in section 16-90-901 and the statutes enumerated therein. We thus affirm the chancellor’s ruling regarding the applicability of section 16-90-901 to Appellant’s adjudication in juvenile court.

Additionally, we note that Appellant argued below that the different procedures for expunging the records of juvenile offenders and adult criminal offenders amount to a violation of his right to equal protection of the law. We do not reach the merits of this argument, because Appellant did not obtain a ruling from the chancellor and has not fully developed this issue on appeal. This court has repeatedly stated that the failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes a review of the issue on appeal. See, e.g., McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997); Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997); Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996), cert. denied, 117 S. Ct. 979 (1997). The burden of providing a record sufficient to demonstrate that reversible error occurred is upon the appellant. McGhee, 330 Ark. 38, 954 S.W.2d 206.

Here, the abstract reveals only that the chancellor found that section 16-90-901 does not apply to juvenile delinquency proceedings, and that the Juvenile Code requires that records of felony dispositions in juvenile court remain on file with law enforcement for a period of ten years. The chancellor never addressed the difference between the expungement procedures offered in the two statutes. In any event, it practically goes without saying that “juvenile offenders are not adult offenders and are not treated as such.” Robinson v. Shock, Supt., 282 Ark. 262, 265, 667 S.W.2d 956, 958 (1984). “[T]he entire process and the purpose of the juvenile code set it apart from the criminal code and many of the considerations involved in dealing with juvenile offenders are significantly different.” Id. We thus affirm the chancellor’s ruling.

       Rule 4-2 has been amended, effective for all briefs filed after July 1, 1998. See In re: Supreme Court Rule 4-2, 331 Ark. Appx. (January 29, 1998). As of that date, Rule 4-2(a)(8) will require that each brief include an Addendum containing a photocopy of the order or judgment from which the appeal is taken. Correspondingly, Rule 4-2(a)(6) will no longer require such documents to be abstracted.


author: Robert L. Brown, Justice.

text:
    Mary Ann DANIELS v. STATE of Arkansas
    98-43
    970 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered June 18, 1998

      William R. Simpson, Jr., Public Defender, by: Russell Byrne, Deputy Public Defender, for appellant.

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

The sole issue in this appeal is whether the probate court lacked jurisdiction in this matter due to the fact that appellant Mary Ann Daniels was not provided a timely evaluation and psychiatric report by the Director of the Department of Health and Human Services (DHS) and a subsequent hearing before the probate court pursuant to Ark. Code Ann. § 5-2-314(d) (Repl. 1997). We hold that the probate court did have jurisdiction, and we affirm.

On May 29, 1997, the circuit court entered both a Judgment of Acquittal by Reason of Mental Disease or Defect and an Order of Commitment with respect to Daniels, who had been charged with residential burglary and theft of property. The court found that Daniels was affected, and remained affected, by mental disease or defect; that the crime did not involve bodily injury to another person, serious damage to property, or the substantial risk of such injury or damage; and that she should be automatically committed to the custody of the Director of the Arkansas State Hospital. The circuit court ordered the Director to file a psychiatric report, known as an Act 911 report, with the probate court within thirty days as required by Ark. Code Ann. § 5-2-314(d), with a hearing to be held within ten days with the assistance of appointed counsel, if necessary.

Despite the circuit court’s order, Daniels remained in the county jail for approximately six months. On October 16, 1997, the circuit court entered a second judgment of acquittal by reason of mental disease or defect. On November 10, 1997, Dr. Wendell Hall, Forensic Medical Director at the State Hospital, filed his Act 911 report, and a hearing on the matter was held on November 19, 1997. Daniels was represented by the county public defender. At the hearing, Dr. Hall testified that the State Hospital, which is part of the Division of Mental Health Services of DHS, was first informed of Daniels’s judgment of acquittal on October 15, 1997, and that she was admitted to the State Hospital the following day. According to Dr. Hall, Daniels’s primary diagnosis was schizoaffective disorder, but he testified that she also suffered from cocaine dependency as well as cannabis and alcohol abuse. His ultimate recommendation was that she continue to undergo treatment in the State Hospital because she was disorganized, psychotic, and hostile.

The probate court rejected Daniels’s contention that it lacked jurisdiction due to the untimeliness of the Act 911 report filed by Dr. Hall and entered an order on November 19, 1997, that committed her to the custody of DHS for further treatment. On December 3, 1997, the probate court declared Daniels indigent for purposes of her appeal.

Daniels contends on appeal that the six-month delay caused the probate court to lose jurisdiction. The relevant portion of the Arkansas Criminal Code provides:

The Director of the Department of Human Services shall file the psychiatric or psychological report with a probate court having venue within thirty (30) days following entry of order of acquittal. A hearing shall be conducted by the probate court and shall take place not later than ten (10) days following the filing of the report with the probate court.

Ark. Code Ann. § 5-2-314(d) (Repl. 1997).

In Hattison v. State, 324 Ark. 317, 920 S.W.2d 849 (1996), this court rejected the same argument mounted by Daniels that the probate court loses jurisdiction based on the untimely filing of the Act 911 report. In Hattison, judgments of acquittal based on mental defect were entered on March 3 and March 7, 1995. The Act 911 report was filed on April 7, 1995, which was outside the thirty-day period required by § 5-2-314(d), and the appellant petitioned the probate court for release, which was denied. On appeal, this court affirmed and rejected the appellant’s argument that the failure to file a timely Act 911 report deprived the probate court of jurisdiction. We acknowledged that § 5-2-314(d) speaks in mandatory terms but determined that loss of jurisdiction would not follow because the General Assembly did not provide a sanction for an untimely filing and because there was no evidence that such a result was intended. This court ultimately determined that probate-court jurisdiction was established by the order of commitment entered by the circuit court, and held:

While a commitment cannot be “indefinite,” Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981), citing Jackson v. Indiana, 406 U.S. 715 (1972), we know of no reason to deprive the Probate Court of jurisdiction due to a late psychiatric report. Had that been the intention of the General Assembly, it could easily have so provided.

Hattison, 324 Ark. at 319, 920 S.W.2d at 850.

Daniels argues that Hattison should be overruled and that we should hold that the probate court lost jurisdiction because (1) the Act 911 report in her case was filed much later, which resulted in a lengthy incarceration; (2) she suffered a mental defect that prevented her from seeking relief on her own behalf; and (3) she was no longer represented by the public defender, who was relieved of representation upon acquittal, and she was only again assigned counsel once the Act 911 report was filed under Ark. Code Ann. § 5—2—314(f) (Repl. 1997). Daniels, however, cites no authority for her argument that we should overrule the Hattison case even though this court recognizes a strong presumption in favor of the validity of its prior decisions. See Hopson v. State, 327 Ark. 749, 940 S.W.2d 479 (1997); Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996). Moreover, the General Assembly is presumed to be aware of this court’s decisions. See Smith v. Shelter Mut. Ins. Co., 327 Ark. 208, 937 S.W.2d 180 (1997); Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991). As the State points out, § 5-2-314(d) has remained unchanged by the General Assembly in the wake of the Hattison decision. We, therefore, affirm the probate court’s decision.

Our affirmance today in no way countenances what we perceive to be an unconscionable delay in committing Daniels to the State Hospital for an Act 911 Report. This is clearly a case where the system abysmally failed her, and, as a result, a mentally diseased person was left incarcerated in the county jail for six months. How this could happen is beyond us, and we are certain that the blame must fall on several shoulders. The result, however, evidences a profound administrative breakdown. We urge that immediate corrective steps be taken by the various parties involved in the Act 911 process, including the sheriffs department, the circuit court, the probate court, and the public defender’s office, to assure that such a breakdown does not occur again.

Affirmed.