author: Robert H. Dudley, Justice.

text:
    Anthony Antonio HART v. STATE of Arkansas
    CR 92-1414
    852 S.W.2d 312
    Supreme Court of Arkansas
    Opinion delivered April 26, 1993

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

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

Appellant was found guilty of capital murder and sentenced to life in prison without parole. He appeals and, in his only point of appeal, argues that the trial court erred in refusing to suppress his confession. We affirm the ruling of the trial court on the point. Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, under which the Attorney General must “brief. . . any other points that appear to. . . involve prejudicial error,” the State additionally questions whether the trial court’s ruling admitting the confession into evidence violated A.R.Cr.P. Rules 2.2 and 2.3. We hold the ruling of the trial court did not constitute reversible error. Since appellant was sentenced to life in prison without parole, an examination has been made of all objections decided adversely to appellant pursuant to Rule 11(f), and, pursuant to that review, there was no prejudicial error in the trial. Accordingly, we affirm the judgment of conviction.

Since the sufficiency of the evidence is not questioned, we set out only the evidence that is necessary to understand the issues on appeal. On Sunday, April 7, 1991, at 11 a.m., Mary Croom’s corpse was discovered at her home on East Sixth Street in Little Rock. It was obvious that she had been murdered because the corpse had forty stab wounds, and a large butcher knife with a white handle remained impaled in the corpse’s torso. The police immediately began to check the neighborhood for information. The victim’s sister, Bertha Jackson, thought a television set and some meat were missing from the victim’s home. O.D. Kirkland stated that on the previous Tuesday he took the victim shopping, and she purchased a ham. When they returned to his house from the grocery store, the victim asked to borrow his hacksaw and white-handled butcher knife so that she could go to her home and cut up the ham. Appellant, who was standing nearby, offered to assist her in cutting up the ham. The two left together to go to the victim’s home with the hacksaw and white-handled butcher knife to cut up the ham. O.D. Kirkland also told the detective that two days later, on Thursday, appellant came back by his house and sold him some meat and offered to sell him a television set.

The two detectives investigating the murder were told that appellant could be found at his grandmother’s house. They went there, and while they were there, appellant phoned his grandmother. One of the detectives spoke to him and told him that they wanted to ask him some questions. Appellant responded that he was at work, but they could come to his place of employment and talk to him. The detectives drove to appellant’s place of employment, found him, and asked if he would come to the police station to answer some questions. Appellant was not placed under arrest at the time, but neither of the detectives told appellant that he did not have to go with them. They got to the police station at about 3:00 or 3:30 in the afternoon, which was only four hours after the corpse had been found.

At the police station appellant was given a Miranda warning. He said he understood his rights and he waived them. He did not appear to the officers to be intoxicated, and they testified that at the time he appeared to be aware of his rights and the consequences of his decision to abandon them. While a subsequent test of his intelligence quotient measured 80, or comparatively low, he had completed high school. He was twenty-seven years of age, could read and write, and was familiar with the process since he had four prior convictions. He signed a waiver-of-rights form at 3:40 p.m. He told the detectives that they could find some evidence at 1512 Hangar Street in Little Rock. The detectives left the station to go to the address, but were never able to find such an address. While they were gone they left appellant unrestrained in an unlocked interview room. They did not tell appellant he was free to leave. The detectives returned to the station in about an hour, and appellant was still waiting in the interview room. About an hour later, at 5:45, appellant was reminded of his rights, but they were not repeated verbatim, and was asked if he understood his rights. He responded that he did and that he had signed the waiver form. Appellant then confessed to the murder and said he committed it so that he might take something of value from the victim’s house and sell it in order to buy drugs. The confession was made within seven hours of the discovery of the corpse.

Appellant argues that the trial court erred in refusing to suppress the confession because the police did not “reMirandize" him at the time the confession was taken. The argument is without merit for two reasons. First, factually, while a new rights form and waiver-of-rights form were not executed at 5:45, the time of the confession, appellant was reminded of those rights and asked if he understood those rights. He responded that he did. Second, legally, there is no requirement that Miranda warnings be repeated each time a suspect is questioned. Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420, cert. denied, 111 S. Ct. 1123 (1990).

Appellant also argues that his confession should have been suppressed because it was not knowingly and intelligently given since a test of his intelligence quotient revealed a low intellect. In determining whether a suspect made a knowing and intelligent abandonment of his Fifth Amendment privilege and Sixth Amendment right to counsel, a trial court must look at the totality of the circumstances to determine whether the waiver was made with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon them. This inquiry necessarily includes an evaluation of the defendant’s age, experience, education, background, intelligence, whether he has the capacity to understand the warnings given him in light of the nature of his Fifth, Sixth, and Fourteenth Amendment rights, and to understand the consequences of waiving those rights. Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992). A low score on an intelligence quotient test does not necessarily mean the suspect is without the requisite level of comprehension to knowingly and intelligently waive his rights. Lowe v. State, 309 Ark. 463, 830 S.W.2d 864 (1992). The trial court heard the testimony in this case and considered appellant’s age, his ability to read and write, his educational background, his comprehension level and, from that testimony, concluded that the waiver was made with a full awareness of both the nature of the rights being abandoned and the consequences of the decision to abandon those rights. On appeal, we reverse only if that finding was clearly erroneous. Id. The trial court’s finding was not clearly erroneous.

Appellant makes an additional argument about the voluntariness of his confession. He argues that, because he was held in an interrogation room for two hours and was not told he could leave, his statement was not voluntarily given. He does not contend that any force or threats were used, or that he was incarcerated during this two-hour period, or that the police acted in any threatening manner. Rather, he argues that the police did not clearly inform him that he was free to leave the interrogation room while they were gone, and, therefore, the two-hour wait rendered the confession involuntary. This court has held that the fact that a defendant was not told that he had no legal obligation to accompany detectives to the police station does not render an interrogation coercive. See Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979). By analogy, the fact that appellant was left alone in an unlocked interrogation room for two hours does not, of itself, render a waiver of rights involuntary. Under all of the circumstances, we cannot say that the trial court erred in refusing to suppress the confession. In sum, there is no merit in appellant’s point of appeal.

The Attorney General, pursuant to his duties under Ark. Sup. Ct. R. 11 (f), sets out a potential error. It involves a violation of A.R.Cr.P. Rules 2.2 and 2.3.

Rule 2.2 states that a law enforcement officer may request any person to cooperate with an investigation by responding to questions, appearing at a police station, or complying with any other reasonable request. Rule 2.3 provides that when a law enforcement officer requests someone to accompany him to the police station, he shall make it clear that “there is no legal obligation to comply with such a request.” The detectives did not tell appellant that he did not have to go with them to the police station. Since the detectives did not comply with the rule, there was a seizure of the appellant and a violation of his rights under the Fourth Amendment unless the detectives had probable cause to arrest him. Burks v. State, 293 Ark. 374, 738 S.W.2d 399 (1987). Probable cause exists where reasonably trustworthy information of facts and circumstances within the officers’ knowledge would lead a person of reasonable caution to believe that a felony was committed by the person detained. Id. at 377, 738 S.W.2d at 401.

The facts known by the detectives at the time appellant went to the police station were such as would lead a person of reasonable caution to believe that the murder had been committed by the appellant. They had reasonably trustworthy information that the appellant and the victim left O.D. Kirkland’s house and went to the victim’s home and that they took with them a large, white-handled butcher knife and a ham. They knew that the victim’s corpse was discovered at her home with a large, white-handled butcher knife impaled in it. They had reasonably trustworthy information that the meat and a television set were missing from the victim’s home. They also had reasonably trustworthy information that appellant sold some meat and attempted to sell a television set. This information was such as would lead a person of reasonable caution to believe that the murder had been committed by appellant. Consequently, there was probable cause to arrest appellant, and the violation of A.R.Cr.P. Rule 2.3 becomes immaterial.

Affirmed.


source: Caselaw Access Project

author: Robert L. Brown, Justice.

license: Public Domain

text:
    Jerry ANDERSON v. STATE of Arkansas
    CR 92-977
    852 S.W.2d 309
    Supreme Court of Arkansas
    Opinion delivered April 26, 1993

      Val P. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Kent G. Holt, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

This appeal arises out of the second-degree murder conviction of the appellant, Jerry Anderson, for beating a man to death. Anderson was sentenced to fifteen years in prison and fined $5,000. He appeals on insufficient evidence of purpose and causation and further on the trial court’s refusal to allow into evidence the fact that , he had no felony record. The asserted grounds have no merit, and we affirm.

The beating occurred about midnight on August 21, 1991. Anderson, age 19, Thomas Saunders (the victim), Anderson’s brother, and others were at a party at the home of Elloise Huggins in Jonesboro. The participants were drinking malt liquor and rum and playing cards. At one point in the evening, Saunders hit the bottom of a beer bottle from which Anderson was drinking causing Anderson to chip a tooth. A fight ensued.

Anderson described the fight in his first taped statement given to the police which was played to the jury:

When we got into the fight, I hit Saunders and he fell on the porch and then when he fell, I hit him with a straight blow with my right fist. I do not know where I hit him because it was dark. I knocked him down on the porch. Then I kicked him in the side and he fell off the porch. He got on the ground and I just kicked him in the side a couple more times, and then I stomped his head 2 or 3 times. I kicked him with my right foot. I did not kick with my left foot. I never got down over him and held his head. Nobody else struck any blows.

Anderson stated he kicked Saunders a total of six or seven times. He later testified that Saunders was down trying to protect himself when he kicked him in the ribs and head. Elloise Huggins testified that when she saw Anderson “stomping” Saunders’s head, it was so bad that she could not watch. After the fight, Anderson said his brother and Ellis Huggins carried Saunders over to a ditch where they left him. Anderson added:

My brother, John, and Ellis Huggins mentioned they thought he was dead. They said he had a pulse and they went back out to check him and they said he did not have any pulse.

No one at the party called the police or sought medical attention for Saunders. Ellis Huggins later denied that he thought Saunders was dead.

Saunders’s body was found the next morning after the fight. Officer Jack McCann of the Jonesboro Police Department investigated the death and, as a result, arrested Anderson that same day. He testified that he did not notice bruises on Anderson or other evidence that he had been involved in a fight.

The medical examiner, Dr. Fahmy Malak, testified at trial that Saunders died because of physical trauma to the head and alcohol consumption which caused him to lapse into a coma and cease breathing. He testified that Saunders’s alcohol level was .21 percent at the time of death, twice the level required to qualify for legal intoxication, but that this level was not sufficient, in itself, to cause his death. He further testified that Saunders did not die immediately and that he had aspirated blood into his lungs due to cuts to his lips.

At the close of the state’s case, Anderson moved for a directed verdict on insufficient evidence due to a lack of intent to kill Saunders and the absence of causative evidence that his blows to the head actually resulted in Saunders’s death. He further argued that the trial judge erred in forbidding him to introduce evidence of no arrests or felony record because self-defense was his theory for acquittal. The judge denied the motion.

As part of the defense case, Anderson testified that he was 19 years old and had a reputation for being a law abiding and peaceful citizen. He then testified that he had been drinking malt liquor and got into the fight but did not think the blows he inflicted on Saunders would cause his death. He stated that Saunders swung at him first but agreed that he got in “the first and last lick.”

The jury was instructed on second-degree murder, manslaughter, and negligent homicide. Instruction No. 10 read as follows:

Jerry Anderson is charged with the offense of murder in the second degree. To sustain this charge, the State must prove beyond a reasonable doubt that:
Jerry D. Anderson, with the purpose of causing serious physical injury to Thomas Saunders, caused the death of Thomas Saunders.
“Purpose”—A person acts with purpose with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.
“Serious Physical Injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.

Following the guilty verdict for second-degree murder, Anderson requested that the fifteen-year sentence be reduced because he did not have a felony record. The trial judge refused to do that and stated that, though he sustained an objection to any questioning on Anderson’s record, the jury knew by the way Anderson testified that he did not have a record.

For his first point, Anderson contends that there was insufficient evidence of purpose and causation to sustain a conviction for second-degree murder. We disagree. The jury was properly instructed on the law of second-degree murder, purpose, and serious physical injury, as well as manslaughter and negligent homicide.

An appeal from a denial of a motion for directed verdict is a challenge to the sufficiency of the evidence, and we review the evidence in the light most favorable to the appellee. Green v. State, 310 Ark. 16, 832 S.W.2d 494 (1992); William v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). We will sustain the conviction if there is substantial evidence to support it which is evidence of sufficient force and character to compel a conclusion beyond suspicion or conjecture. Id', see also Lukach v. State, 310 Ark. 38, 834 S.W.2d 642 (1992).

Certainly, repeated blows to the head by kicking or “stomping” when the man was down exhibited purposeful action to inflict serious physical injury whether it be risk of death or protracted disfigurement or impairment. See Ark. Code Ann. §§ 5-10-103 (Supp. 1991), 5-1-102(19) (1987), and 5-2-202(1) (1987). This was a question of fact properly left to the jury to resolve, and we hold that substantial evidence exists to support the conviction for second-degree murder. See Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1990).

In addition, though the jury was not specifically instructed on causation, our statute reads:

Causation may be found where the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.

Ark. Code Ann. § 5-2-205 (1987). Dr. Malak’s testimony that death would not have occurred but for the trauma and that the alcohol consumption alone was not the cause of death satisfies the statutory requirement. The evidence was substantial that the blows to the head were a contributing cause of death. See Porter v. State, 308 Ark. 137, 823 S.W.2d 846 (1992).

Nor do we give credence to Anderson’s second point. He argues that the trial judge erred in refusing testimony from Anderson or any other witness on Anderson’s lack of a prior felony arrest or conviction. The trial judge ruled that such testimony was not relevant evidence in support of a self-defense theory. We agree. The absence of a felony record is not evidence of peacefulness anymore than the mere existence of a felony record, by itself, is evidence of a violent temperament. To be sure, conviction for certain past crimes may be evidence of a certain plan, motive, scheme and the like under Ark. R. Evid. 404(b). But the mere absence of any felony conviction is not relevant to the question of who precipitated a fight. Moreover, the evidence in this case went far beyond who threw the first punch and centered appropriately on the purpose behind the subsequent beating and the result.

Lastly, we note, as the trial judge emphasized, that Anderson was permitted to testify that he had a reputation for being a law abiding and peaceful citizen. See Ark. R. Evid. 405(a). This statement was not countered by the state. From this, the jury could easily have garnered Anderson’s point that he had no felony record.

In sum, the acceptance or rejection of evidence relating to the absence of Anderson’s felony record is a matter left to the discretion of the trial judge. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). There was no abuse of that discretion.

Affirmed.


author: Jack Holt, Jr., Chief Justice.

text:
    FAYETTEVILLE SCHOOL DISTRICT NO. 1 v. ARKANSAS STATE BOARD OF EDUCATION
    92-1226
    852 S.W.2d 122
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Rudy Moore, Jr., P.A., for appellant. .

      Sharon Carden Street, Arkansas Department of Education; and Winston Bryant, Att’y Gen., by: Tim Humphries, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The Fayetteville School District No. 1 (the School District) appeals the denial of its request for a permanent injunction by the Pulaski County Chancery Court to halt the State Board of Education (the Board) from withholding Minimum Foundation Program Aid (MFPA) funds the Board claims it overpaid the School District in the total amount of $623,535 over the budget years of 1984-85 and 1985-86. The Board notified the School District on July 18, 1988 that $124,707 would be withheld from the School District’s 1988-89 budget and that the remaining $498,828 would be withheld in the same manner from the District’s future MFPA proceeds pursuant to Ark. Code Ann. § 6-20-310 (Supp. 1991). We affirm the chancellor’s rulings.

This controversy arose from our decisions in Arkansas Pub. Serv. Comm’n v. Pulaski County Bd. of Equalization, 266 Ark. 66, 582 S.W.2d 942 (1979) and Dupree v. Alma Sch. Dist. No. 30, 279 Ark. 34, 651 S.W.2d 90 (1983) and the remedial legislation passed by the Arkansas General Assembly in response to these decisions. In Public Serv. Comm’n v. Pulaski County, supra, we held that our constitution requires that all property subject to taxation must be taxed according to its value and that this value must be equal and uniform throughout the state. To put this holding into effect, we affirmed the trial court’s approval of an agreement of all the parties in litigation, except one which had not argued the matter in its brief, for statewide reassessment over a five year period commencing January 1, 1981. Under this plan, our seventy-five counties were put into groups of fifteen counties to be reassessed each year named Groups One through Five, respectively. The order of placement of counties within these groups was to proceed from those counties which were deemed to have the greatest disparity between assessed and actual values to those with the least disparity.

Later in Dupree, supra, we declared the funding formula for state aid to local school districts to be unconstitutional and found that the ongoing reassessment of our counties required by Public Serv. Comm’n v. Pulaski County, supra, would not alter this holding.

Following Dupree, the General Assembly passed the School Finance Act of 1984, now Ark. Code Ann. § 6-20-301 — 319 (1987 & Supp. 1991), which contained an equalizing formula whereby a school district’s local wealth per student determined the amount of state aid per student the district received thus guaranteeing that the combination of local and state monies would equal a minimum amount per student. This Act took into account the fact that the fifteen counties in Group Four were to be reappraised in the 1984-85 school year and the fifteen counties in Group Five were to be reappraised in the 1985-86 school year. It further provided that until actual reassessments for the districts in Groups Four and Five could be undertaken, MFPA levels would be based on estimates made by the Assessment Coordination Division of the Public Service Commission. Specifically, Ark. Code Ann. § 6-20-310(a) (Supp. 1991) provided for “set-aside funds” or an adjustment against funds the school district was to receive if the actual, reassessed property value exceeded the former value by greater than five percent:

Funds shall be set aside from the total monies available for allocation under the provisions of this Act for adjustments in aid allocation for any district whose actual real property assessment, when certified by the county clerk and/or the county school supervisor, has increased or decreased by more than five percent from the projected amount used in determining aid for the district. The Department of Education shall adjust to the five percent level in the year in which the funds are distributed. This provision shall only apply in the 1984-85 year to districts in the fifteen counties completing the reappraisal process in that year and in 1985-86 to only the districts located in those counties completing the reappraisal process in that year.

Section 6-20-310(a) was amended by Act 674 of 1985 to allow the Department of Education to recover overpayment amounts over a two year period for districts whose repayment amounts were significant. It was again amended by Act 203 of 1987 to provide additional relief to districts with significant repayment amounts by allowing repayments to be spread out over five rather than two years and by Act 480 of 1989 to ensure that any increase in MFPA due to increased enrollment was deleted from the calculation of a district’s increase in MFPA for the purpose of calculating the amount of repayment.

In 1985, Washington County reassessed its property. The Board of Education claimed the increase in current market values of property in that county resulted in overpayment by the state of $623,535 recoverable by the state pursuant to Ark. Code Ann. § 6-20-310(a) (Supp. 1991). The School District sought a preliminary injunction to stay the withholding of the first installment, $124,707, claiming it would suffer irreparable harm, but this was denied after a hearing. The School District then filed an amended complaint seeking a permanent injunction on constitutional grounds. The case was submitted to a chancellor upon stipulated facts, briefs, and the testimony given in the prior hearing on the District’s motion for a preliminary injunction. The chancellor found that the School District had failed to establish that the payback provisions of the 1984 School Finance Act were unconstitutional, arbitrary, or inequitably applied and denied the District’s request for a permanent injunction.

Testimony by witnesses for the School District revealed that the last counties to be reappraised, those in Groups Four and Five, were purposefully saved for last because they were deemed to have the smallest disparity between reassessed and actual values.

The procedure under the School Finance Act was that the Assessment Coordination Division of the Public Service Commission was to provide estimates of reappraised values for school districts in Groups Four and Five until actual reappraisals were completed. Once reappraisal was completed, the Assessment Coordination Division was to make another estimate of what the property should have been appraised for in those previous two years, and if the variance between this second estimate and the actual value is greater than five percent, a reclamation of aid was to take place.

In support of its claim of irreparable harm, the District presented testimony that under the School Finance Act of 1984, 70 % of a school district’s current net revenues are to be spent on salaries and benefits for teachers and administrators, and the School District did this with the monies received which the Board is now seeking to reclaim. Furthermore, school districts in Arkansas are required to renew the contracts of their teachers and administrators for a subsequent year at the same terms as the previous year, so now the School District is locked into contracts at certain rates based on the monies received from the Board which the Board now wants back. Since this salary expense is set, the shortfall in revenue comes out of supplies, maintenance, and salaries for support staff.

Other testimony presented by the District revealed that the counties in Groups Four and Five which received MFPA funds based on estimates of fair market value which the Board subsequently determined to be in error were the only districts in the state subject to the retroactive payback provisions of the Act.

The Board responded by putting on evidence that the School District failed to show irreparable harm was wrought by the withholding of $124,707 in MFPA funds during the 1988-89 school year. While the School District argues that the withholding of funds created a great hardship, in fact the District ended the 1987-88 school year and thus went into the 1988-89 year with a budget surplus of $977,211. Also, the amount withheld was only 1.66 % percent of $7,525,243, the total MFPA funds received by the District for the 1988-89 school year.

POINT I: DID THE SCHOOL FINANCE ACT OF 1984 AS AMENDED REPRESENT SPECIAL AND LOCAL LEGISLATION IN VIOLATION OF AMENDMENT 14 OF THE ARKANSAS CONSTITUTION?

Amendment 14 to the Arkansas Constitution provides that the “General Assembly shall not pass any local or special act.”

The School District argues that the School Finance Act of 1984 violates this constitutional prohibition because the effect of the law is to arbitrarily separate certain school districts from the benefits of the Act, whereby, the only school districts which are forced to repay overpayments of state aid are those in the Fourth and Fifth Groups which were given erroneous estimates by the Assessment Coordination Division. In addition, Groups Four and Five contain the only school districts which must pay back overpayments while other categories of school districts, i.e., isolated schools, hardship or emergency schools, schools consolidated in 1983-84 or 1985-86, and schools with less than 360 students average daily membership were either allowed gradual or no reduction in overpayments.

In Owen v. Dalton, 296 Ark. 351, 757 S.W.2d 921 (1988), we held:

An act is special if by some inherent limitation or classification it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate, and the legislation is local if it applies to any division or subdivision of the state less than the whole;

and in City of Little Rock v. Waters, 303 Ark. 363, 371, 797 S.W.2d 426 (1990), we specifically stated that just because a statute may ultimately affect less than all the state’s territory it does not necessarily render it local or special.

In evaluating the facts, the chancellor noted that the determinative factor is whether the General Assembly acted in an arbitrary manner to separate one division of the state from another. We apply the rational basis test to determine whether such a separation is arbitrary. Streight v. Ragland, Comm’r, 280 Ark. 206, 655 S.W.2d 459 (1983). Under the rational basis test, legislation is presumed constitutional and rationally related to achieving any legitimate governmental objective under any reasonably conceivable fact situation. Id. This presumption places the burden of proof on the party challenging the legislation to prove its unconstitutionality, i.e., that the legislation is not rationally related to achieving any legitimate objective of the government under any reasonably conceivable fact situation. Phillips v. Giddings, 278 Ark. 368, 646 S.W.2d 1 (1983). The School District had the burden of showing that the General Assembly acted arbitrarily when it implemented the School Finance Act of 1984 in its amendments and it has failed in this regard.

The Board cites Thomas v. Foust, 245 Ark. 948, 435 S.W.2d 793 (1969), for the rule that even though a law is limited in effect to only a few classifications, it is not necessarily special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the law. We hold that the rule in Thomas v. Foust, supra, controls and agree with the trial court’s detailed and well reasoned opinion in which the chancellor found that the School . Finance Act of 1984, as amended, was general legislation and not special or local legislation because it bears a reasonable relationship to the law.

The purpose of the Act was to provide more equitable school funding which in turn was dependent on assessments that were based upon current market values established by reassessment. The districts singled out for classification into Groups Four and Five were those in which reassessment would not be complete and which would therefore require special treatment to take that into account.

As was aptly stated by the chancellor:

It is clear that the General Assembly had to rectify one problem prior to the solving of another. After Alma, the legislature had to formulate a method to allocate MFPA when some real property values were unavailable since county-wide reappraisal had not been completed. The plaintiff has failed to prove that the legislation did not have a rational basis, i.e., an attempt to fairly distribute state aid on a per student basis when some counties had not completed reappraisal. The counties in the fourth and fifth-year reappraisal groups were treated similarly under the act and necessary adjustment would be made in all school districts in those counties. Although these school districts were treated differently than the districts in the first three groups of counties, the intended result was that, after adjustment, all the districts would eventually be treated equally.

All legislative acts are presumed to be constitutional, and all doubts will be resolved in favor of an act’s constitutionality if it is possible to do so. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). In light of this rule and the findings of the chancellor, we hold that this School Finance Reform Act of 1984 is constitutional.

POINT II: DOES THE 1984 SCHOOL FINANCE ACT, AS AMENDED, VIOLATE ARTICLE 14, SECTION 2 OF THE ARKANSAS CONSTITUTION?

Article 14, § 2 of the Arkansas Constitution states:

No money belonging to the public school fund, or to this State for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.

The School District argues that public policy and cases following Lepanto Special Sch. Dist. v. Marked Tree Special Sch. Dist., 173 Ark. 82, 291 S.W.2d 1006 (1927), support the rule that a school district cannot be compelled to repay funds erroneously apportioned to it if such funds were consumed for educational purposes. See Newark Sch. Dist. v. Cord-Charlotte Sch. Dist., 278 Ark. 110, 664 S.W.2d 110 (1983).

The School District erroneously states “Lepanto says such funds are not recoverable from the School District and to do so would implicitly violate Article 14, Section 2 of the Arkansas Constitution.” We assume the District intended Section 3 rather than Section 2, since in Lepanto we cited Section 3:

The court is committed to the doctrine that school taxes erroneously levied and distributed, pursuant to the levy, to a school district and consumed in educational purposes, cannot be recovered by the school district rightfully entitled thereto. The district to which the taxes rightfully belonged should have proceeded by injunction or other proper remedy to prevent the wrongful assessment, levy and distribution of taxes, or else have brought a suit for recovery of such taxes before they were expended for educational purposes by the district wrongfully receiving them.
Appellant contends, however, that the rule therein announced is in conflict with the last proviso of § 3, Article 14, of the Constitution of the State. The proviso referred to is as follows:
Provided, further, that no such tax shall be appropriated to any other purpose not to any other district than that for which it was levied.

Lepanto Special Sch. Dist. v. Marked Tree Special Sch. Dist, 173 Ark. 82, 83-4, 291 S.W.2d 1006, 1007 (1927). Also, Newark Sch. Dist., supra, does not cite Article 14 at all.

The Board in its argument distinguishes Lepanto and replies that the legislative enactments which provide recoupment of the overpaid funds was a valid legislative exercise complimenting our decision in Dupre v. Alma Sch. Dist. No. 30, 279 Ark. 34, 651 S.W.2d 90 (1983) and Arkansas Pub. Serv. Comm’n, v. Pulaski County Bd. of Equalization, 266 Ark. 66, 582 S.W.2d 942 (1979). We agree.

We also agree with the chancellor that the School District failed to discern the important differences between the Lepanto case and the present case. The Lepanto Court was not considering a state statute which required the state to pay a school district less MFPA in a subsequent year because of an overpayment based on assessed valuation prior to the Pub. Serv. Comm’n case in a previous school year. Also, in Lepanto we held that one school district could not recover funds to which it is entitled from another school district who had expended those funds, not, as here, that the state acting according to state law could not recover funds from a school district. For these reasons, Lepanto offers no precedential authority for the District’s proposition.

It is obvious to us that the payback provisions of the School Finance Act of 1984 as amended represent a legal recoupment of state funds. In order for the state to distribute state funds to school districts, the state had to devise a mechanism which considered the outcome of the Publ. Serv. Comm’n case directing reassessment of property and the Dupree case holding the school finance formula unconstitutional. Without considering both of these cases, there was no way to legally distribute state funds to school districts. The School Finance Act and subsequent amendments defined how state funds would be distributed while the Assessment Coordination Division reassessed property values throughout the state. Since this court ordered reassessment and determined when each county would be assessed, the General Assembly rightfully addressed through these enactments, the flow of state funds, all of which were within the parameters established by this court’s opinions.

POINT III: DOES THE 1984 SCHOOL FINANCE ACT AS AMENDED PROVIDE EQUAL AND UNIFORM ASSESSMENT OF REAL PROPERTY IN THE SCHOOL DISTRICT AS REQUIRED BY ARTICLE 16, SECTION 5, OF THE ARKANSAS CONSTITUTION?

Article 16, § 5, in part, requires “all real and tangible personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the state.” The School District argues that since Arkansas Pub. Serv. Comm’n v. Pulaski County Bd. of Equalization, supra, defined “value” as “current market value,” the use of estimates of value by the PSC in determining the MFPA funds to be received and subsequently recouped from districts in Groups Four and Five is unconstitutional. The School District cites no authority in support of this argument, and we will not address arguments not supported by authority. Goodwin v. Harrison, 300 Ark. 474,780 S.W.2d 518 (1989) (assignments of error that are unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that they are well taken).

For all the foregoing reasons, we affirm.


text:
    Gilbert Leroy LEMON v. Ike Allen LAWS, Jr.
    92-1255
    852 S.W.2d 127
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993
    [Rehearing denied June 7, 1993.]

      Crockett, Brown & Worsham, P.A., by: Richard E. Worsham, Cheryl Fisher Anderson, and Robert J. Brown, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Gilbert Leroy Lemon, contends that attorney, Ike Allen Laws, Jr., breached his contract of employment to represent him in a suit for divorce and committed malpractice by representing him in a negligent manner. On the first day of trial, the trial court granted Laws’ motion to strike the contract claim, and the jury returned a verdict in favor of Laws on Lemon’s claims of malpractice and for statutory attorney’s fees. Because the trial court erred in not allowing the contract claim to stand, we reverse and remand its judgment.

In 1985, Lemon filed for divorce in Yell County Chancery Court, and Laws was his attorney. Although Lemon believed he had evidence of his wife’s infidelity, the divorce complaint filed by Laws listed general indignities as grounds for divorce. Lemon’s wife contested only as to property division. During the divorce trial, Laws offered proof of general indignities by asking Lemon two questions about his grounds for divorce. No witnesses were called. The trial court entered an Amended Decree granting Lemon a divorce, and as part of the property division, Maureen Lemon was ordered to pay her husband $29,000.

She appealed, and the Court of Appeals reversed the trial court as Lemon failed to prove and corroborate grounds for divorce. (Lemon v. Lemon, No. CA 87-63, July 8, 1987).

Victorious on appeal, Maureen filed for divorce in Pulaski County Chancery Court. Lemon discharged Laws and hired another attorney, Bill Sherman, to represent him in this second divorce dispute. The parties entered into a property settlement, but it was quite different than the property division ordered by the Yell County Chancellor. Pursuant to the settlement agreement embodied in the Pulaski Chancery decree, Lemon was required to pay his wife $41,000 in cash (using proceeds from what he described as a “quick sale.”) He further alleged that he incurred additional expenses as a result of this second trial including $18,000 in bills owed to an accountant acting as advisor, and $6,500 as fees to Bill Sherman, his second attorney.

Because the property settlement agreement entered in the Pulaski County Chancery Court decree was substantially different from the property division made by the Yell County Chancellor, and because of the additional fees he incurred as a result of his involvement in two court actions, Lemon sued Laws for malpractice, and Laws counterclaimed for attorney’s fees. Later, Lemon voluntarily non-suited his claim for malpractice; however, Laws proceeded on his claims for fees and obtained judgment.

In 1989, Lemon refiled his malpractice claim against Laws under theories of both tort and breach of contract. His complaint was dismissed by Pope County Circuit Court pursuant to res judicata, but this decision was reversed and remanded on appeal. Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991).

On remand, Lemon amended his complaint of malpractice and breach of contract by including a request for statutory attorney’s fees. However, on the first day of trial, the judge granted Laws’ motion to strike the contract claim. The jury returned a verdict in favor of Laws on the remaining issues, and judgment was entered accordingly. Lemon now appeals from this most recent judgment.

The trial court granted Laws’ motion to strike the breach of contract action seemingly because it thought that a negligence action and a breach of contract action should not be combined. Consider the judge’s exchange with the parties when he granted the motion:

LAWS’ ATTORNEY. Yes, sir. Would you like for us to renew our motion on the record to strike? We filed a pleading in that respect.
THE COURT. I just thought we would clean up everything out here on the record.
LAWS’ ATTORNEY. Basically, it is our position that this is just a negligence action and not a breach of contract action and there can be no negligent breach of the contract so that we would ask that counsel be admonished not to argue a breach of contract action here or entitlement to attorney’s fees.
LEMON’S ATTORNEY. As to whether this is an action for contract or negligence, we think that the relationship was indeed a contractual relationship. It’s an implied contract and that implied contract had implied duties which were the standard of care that Mr. Laws owed to Mr. Lemon and that there is no inconsistency between proceeding with breach of contract theory and the negligence theory. It just so happens that the action that was the breach of contract that we are alleging was also the negligent [sic] action.
THE COURT. Well, I don’t think that you can combine the two causes of actions. I think it’s just like I said in chambers. You don’t sue a doctor for a breach of contract because of his professional services that he’s rendered, at least I’m not aware of any cases. It’s always dealt with as a standard of care. It’s a tort action; and I feel that attorneys would fall into the same class as a professional person as a doctor, and it’s a tort action. It’s not a contract action. So, the Court will limit your proof to that dealing with tort and not in contract.

Contrary to the trial court’s thoughts, our rules permit the joinder of claims brought against a party. Specifically, A.R.C.P. rule 18(a) provides that a “party asserting a claim for relief as an original claim. . .may join either as independent or as alternate claims, as many claims as he may have against an opposing party. . . .”

Laws cites Robertson v. White, 633 F.Supp. 954 (W.D.Ark. 1986) in support of his contention that the contract claim was properly struck by the trial court. In Robertson the United States District Court, interpreting Arkansas law, held that a contract claim could not be brought against accountants because the complaint against them was based on “bad performance moreso than the failure to embark upon a promised course of performance.” Id at 974.

In reviewing Robertson, we note that the District Court made no reference to our holding in Halsey v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), which is dispositive of the issue as to when contract and tort causes of action can be joined and is applicable to the facts at hand. In Halsey, a contract promotor filed suit against a booking agent alleging breach of contract, negligence and fraud, arising out of the failure of singer, Rick Nelson, to appear at a scheduled concert. The appellant argued that the trial court erred in submitting the case to the jury on theories of tort and contract. This court disagreed stating, “Contract and tort theories have been determined to be consistent when both seek the same relief and the evidence to support recovery on one theory partially supports it on another.” Id at 465.

Citing Halsey, supra, Brill, Arkansas Law of Damages, § 2-6 (2d ed. 1990), affirms this proposition that if a party has two or more remedies that are concurrent and consistent, he may pursue all of them explaining that:

[T]he courts have also delineated which remedies are not inconsistent. Alternative theories are consistent when both seek the same general relief and the evidence to support recovery on one theory partially supports it on another. For example, when a concert promotor sued an agent who failed to provide the musician agreed upon, the promotor was permitted to assert grounds of contract, fraud and negligence. Although the plaintiff may recover on only one theory, and although the recoverable damages may vary with the theory, alternative theories may be pursued, and the jury instructed on alternative theories. However, in another case, the court held that it was improper for the plaintiff to proceed on both a contract theory and a tort theory, at least when punitive damages were sought. That decision is not in accord with the election doctrine or with procedural developments.

Brill, Arkansas Law of Damages, § 2-6 (2d ed., 1990).

In his first amended complaint, Lemon alleged that Laws was negligent in his representation of him by failing to present sufficient proof to corroborate Lemon’s asserted grounds for divorce. His breach of contract cause of action, which was struck by the trial court, arose from this same theory in that he alleged that Laws’ omission to put on proof to corroborate Lemon’s grounds for divorce was a breach of the implied contract between the parties. Clearly, both causes of action seek the same relief and the evidence to support recovery on one theory partially supports it on another.

As such, the trial court should not have struck the breach of contract claim. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Corbin, J., not participating.


text:
    William RHODES v. Hon. Ted CAPEHEART, Circuit Judge
    CR 92-1223
    852 S.W.2d 118
    Supreme Court of Arkansas
    Opinion delivered May 3, 1993

      Honey & Honey, P.A., for appellant.

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

This is a speedy trial case. Appellant William Rhodes was arrested and charged with Sexual Abuse in the First Degree pursuant to Ark. Code Ann. § 5-14-108 (1987) on March 29,1990 and has not yet been tried. Rhodes filed a petition for writ of prohibition to this court on October 26, 1992 to prevent his trial pursuant to Ark. R. Crim. P. 28.1(d).

The trial court made the following findings by order or by docket entry:

March 29, 1990 Rhodes’ arrest and charge-original trial date set for March 11, 1991
March 1, 1991 Rhodes’ first motion for continuance granted from March 11 to April 9, 1991
April 8, 1991 Rhodes’ second motion for continuance granted from April 11 to August 23, 1991
August 19, 1991 Rhodes’ motion to compel discovery granted
August 22, 1991 First pretrial hearing-court granted Rhodes a continuance until September 20, 1991
September 11, 1991 Second pretrial hearing
September 20, 1991 Second trial date
October 26, 1992 Rhodes filed a writ of prohibition

There is nothing in the record as to what happened on the trial date of September 20, 1991. The record, supplemental record, and three briefs filed by both petitioner and respondent fail to indicate if Rhodes appeared for trial and the docket sheet is also silent in this regard.

Rhodes argues that despite the periods excluded by the court from the speedy trial period, the State has failed to bring him to trial within one year as required by Ark. R. Crim P. 28.1 (b). The State responds that Rhodes’ method of calculating excludable periods for speedy trial purposes is wrong.

This Court will not grant a writ of prohibition unless it is clearly warranted. Turbyfill v. State, 312 Ark. l, 846 S.W.2d 646 (1993); Leach v. State, 303 Ark. 309, 311, 796 S.W.2d 837, 838 (1990). Prohibition is an extraordinary writ and is never issued to prohibit a trial court from erroneously exercising its jurisdiction, only where it is proposing to act in excess of its jurisdiction. Id. at 312, 796 S.W.2d at 838 (quoting Abernathy v. Patterson, 295 Ark. 551, 750 S.W.2d 406 (1988)). Arkansas R. Crim. P. 28.1 is jurisdictional inasmuch as it requires a defendant to be brought to trial within twelve months or be absolutely discharged pursuant to Ark. R. Crim. P. 30.1(a). Callender v. State, 263 Ark. 217, 219, 563 S.W.2d 467, 468 (1978). Further, a writ of prohibition is proper to prevent a court from exercising a power not authorized by law and where there is no other remedy available. Id.

Once it was shown that trial was scheduled to be held after the speedy trial period had expired, the State had the burden of showing that any delay was the result of the petitioner’s conduct or was otherwise legally justified. Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992); Tlapek v. State, 305 Ark. 272, 807 S.W.2d 467 (1991); Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988); Harwood v. Lofton, 288 Ark. 173, 702 S.W.2d 805 (1986).

Rhodes’ period for speedy trial began when his criminal charge was filed on March 29, 1990. Ark. R. Crim. P. 28.2(a). See Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). Therefore, absent any excludable periods, he originally should have been tried no later than March 28,1991. Three hundred and forty-eight (348) days, passed from the charge to the first continuance, so the State only had seventeen (17) days to spare before the one year period ended.

In 1991, three continuances were granted by the trial court. The first continuance, from March 11 through April 9, was specifically excluded from the speedy trial period. The second continuance from April 8 through August 23 was likewise specifically excluded. A third continuance was granted by the court at the hearing on August 22 from that date until September 20, the date set for trial, with the time to be excluded. Delays resulting from continuances given at the request of the defendant are excludable in figuring the time for a speedy trial. Ark. R. Crim. P. 28.3(c). Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). Rhodes concedes that these three consecutive continuances, from March 11 through September 20, were properly charged to him and were appropriately excluded from the speedy trial period. Thus, the disputed time period begins on September 20, the date set for trial, and continues until October 26, 1992, when this writ of prohibition was filed.

At the heart of this issue is the exchange between defense counsel and the trial judge at the September 11 pretrial hearing:

The Court: [On the speedy trial motion], we counted those days and what you’re saying is that since that time because the State hadn’t provided the discovery and I’m guessing at what you’re saying, from the date of the last trial setting till today shouldn’t be excluded because the State was at fault. Would that be your argument?
Defense Counsel: [Yes]
The Court: It would be the Court’s opinion that both of you were at fault because you-all waited until the day before the trial to worry about discovery and I think that period should be excluded. I would say that State and the Defendant were both at fault and I don’t think that the speedy trial time should run from the date of the last trial until today for that reason.
Defense Counsel: If the Court please, I’m going to prepare an order to that effect and send it to the Court for your signature. Then, Judge, as a matter of mechanics, this case is set for the 20th of the month. I need to tell the Court that based upon the Court’s ruling in my previous motion and in this one that I intend to file a Writ of Prohibition with the Supreme Court. I assume that it would not be possible under those circumstances to try it on the 20th.
The Court: Well, I would assume that a Writ of Prohibition being the proper remedy, that everything would stop when you filed your notice — Writ of Prohibition with the Supreme Court.
Defense Counsel: I just wanted to give the Court notice of the writ.
The Court: Just file — if you’re going to do that, file it before we start calling in the jury so we won’t inconvenience —
Defense Counsel: If the Court would expeditiously sign the order, I’ll try to get that done this afternoon, and then if the Court would sign it and send it right back to me, then I’ll file a — file a motion for writ based on that.
The Court: Well, you can mail it to me. I mean as long as I get it by, say, Monday, that will be fine.
Defense Counsel: I hope you get [the notice of the writ] in the morning and then I promise the Court that I will immediately take that step and that way we won’t leave everybody wondering about it.
The Court: I don’t think I have any say-so over that. I think if you file for a Writ of Prohibition that stops everything.
Defense Counsel: Okay.

Arkansas R. Crim. P. 28.3(a) provides, in part, “The following periods shall be excluded in computing the time for trial. . .the period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . interlocutory appeals.”

The State argues that because Rhodes noted in open court that the September 20 trial date be postponed so that he could proceed to file a writ of prohibition, the period between September 20 and the date the writ was filed should be excluded from the speedy trial period under Ark. R. Crim. P. 28.3(a) even though it was not filed of record during the promised time frame.

Rhodes responds that while he did indicate he intended to file a writ of prohibition, the trial court told him to file it before they started to call the jury and never actually granted a continuance. Rhodes further states:

Petitioner then indicates that the filing would be contingent upon the entry of the Court’s Order denying his Motion to Dismiss. That order was not filed until September 18,1991. By the time Petitioner [Rhodes] received the Order by mail it was not possible to file his Petition for Writ of Prohibition by the September 20 trial date.

In reading the record we cannot accept Rhodes’ interpretation of his verbal exchange with the trial court.

Although it is a basic rule of criminal procedure that the primary burden is on the court and the prosecutor to assure that a case is brought to trial in a timely fashion and a defendant has no duty to bring himself to trial, Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991), the State met its burden under the facts before us. In Key v. State, 300 Ark. 66, 776 S.W.2d 820 (1989), we denied a petition for writ of prohibition in a somewhat analogous situation. In Key, a criminal defendant claimed he had not been given a speedy trial and petitioned for writ of prohibition. Within the one year period, a co-defendant moved that the trial be continued and that the original trial date be used as a date for additional pre-trial motions. During the hearing on this motion, the trial judge asked petitioner’s attorney how she responded to the motion for continuance, and she responded that she had no problems with it. The motion for a continuance was granted, and the trial court announced that the case would be reset for August 1988, still within the speedy trial period. The trial court’s published calendar reflected August 8-12 as trial dates for the county where the case was pending. The trial court failed to make a docket entry or enter an order setting out the continuance as an excluded period as required by Ark. R. Crim. P. Rule 28.3(i), which provides that “[a]ll excluded periods shall be set forth by the court in a written order or docket entry.”

Key argued that the failure to make a docket notation or enter a timely order was fatal to his prosecution. We stated:

The argument ignores our recent case of Kennedy v. State, 297 Ark. 488, 763 S.W.2d 648 (1989), where we held that when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i). Such a holding is based upon the rule that one cannot agree with a ruling by the trial court and then attack that ruling on appeal. See Gilbert v. State, 277 Ark. 61, 639 S.W.2d 346 (1982). Accordingly, we hold that the record of the trial judge’s finding that a continuance should be granted, which was agreed to by the petitioner, is sufficient to satisfy the requirements of A.R.Cr.P. Rule 28.3(i). That one excluded period is sufficient to deny the petition.

Key, 300 Ark. at 67, 776 S.W.2d at 821.

We have continued to cite our holding in Key with approval. Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993); Hubbard v. State, 306 Ark. 153, 812 S.W.2d 107 (1991); Hudson v. State, 303 Ark. 637, 799 S.W.2d 529 (1990); McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). See also Henson v. State, 38 Ark. App. 155, 832 S.W.2d 269 (1992) (when a case is delayed by the accused and that delaying act is memorialized by a record taken at the time it occurred, that record may be sufficient to satisfy the requirements of Ark. R. Crim. P. 28.3(i)). Where, as here, an accused is offered a speedy trial but requests that the trial take place at a later date, and the delaying act is memorialized by a record taken at the time it occurred, he cannot complain that his right to speedy trial was denied. Jenkins v. State, 301 Ark. 586, 786 S.W.2d 566 (1990).

Based on this authority, we agree with the State that defense counsel’s statements during the September 11, 1991 hearing had a tolling effect on the speedy trial period. Mr. Honey, Rhodes’ counsel, promised to file a writ of prohibition immediately and did not do so until October 26,1992, over one year later. Rhodes cannot now complain that he was not given a speedy trial when it was the actions of his own counsel that delayed trial.

To point out the obvious, our trial judges have demanding dockets and quite often sit at different courthouses within their circuit during any given week. There are several judicial districts which do not furnish either case coordinators or secretaries for use by the trial courts. These are but a few additional reasons why the trial court must be able to rely on counsels’ assurances when made in open court. Likewise, it would be inappropriate to charge the trial court or the State with the responsibility of monitoring an attorney’s representations to the court.

In short, an attorney must be held responsible for his word. Rhodes’ attorney’s promise to the trial court that he would immediately take steps to file his petition for writ of prohibition is sufficiently memorialized in the record to satisfy our speedy trial rules.

Writ denied.