author: Annabelle Clinton Imber, Justice. Jim Hannah, Justice,

text:
    Patricia FINNEY v. The Honorable Vicki S. COOK, Circuit Judge, 18th Judicial District (East), Garland County, Arkansas
    02-475
    94 S.W.3d 333
    Supreme Court of Arkansas
    Opinion delivered December 19, 2002

      Daniel D. Becker and Patrick Parsons, for petitioner.

      Mark Pryor, Att’y Gen., by: Melanie A. Winslow, Ass’t Att’y Gen., for respondent.
   Annabelle Clinton Imber, Justice.

This case raises the question of whether service on a court-appointed attorney for an absent military person is sufficient service of process in a case of continuing jurisdiction on the issues of custody and guardianship. Based on the arguments briefed by the petitioner, we deny the petition for a writ.

Tamra and Jeffrey Finney, grandparents of Je’son and Tristin, filed a family-in-need-of-services petition in the Garland County Chancery Court, juvenile division, on September 3, 1999, contending that petitioner Patricia Finney, the children’s mother, and Jason Finney, the father, were not providing a stable home environment. The juvenile court entered a disposition order on September 21, 1999, finding the parents to be in need of services and ordering that (1) the Department of Human Services conduct a home assessment; (2) the parents complete parenting classes and attend counseling; (3) temporary custody of the children be awarded to the paternal grandparents, Tamra and Jeffrey Finney; (4) an attorney ad litem be appointed for the minors; and (5) a review hearing be scheduled. At the review hearing in November 1999, the chancellor ordered DF1S to provide support services, with custody to remain with the grandparents and the parents to pay child support and complete counseling and parenting classes. Prior to another review hearing scheduled in January 2000, the grandparents filed a petition for guardianship of the children, and temporary guardianship was granted on January 6, 2000. The court also appointed an attorney to represent Patricia. On April 11, 2000, the temporary guardianship was terminated, and the children were returned to the sole custody of their mother, Patricia. However, the trial court declared in the April 11, .2000 order that all previous orders not in conflict with the custody order remained in full force and effect.

Patricia joined the Army and was stationed in Hawaii. The grandparents filed another petition for guardianship and emergency relief on September 29, 2000, and temporary guardianship was granted immediately. The juvenile court conducted hearings in October and December 2000, at which Patricia was represented by her court-appointed attorney, but she did not attend in person. The court heard testimony from the grandparents and received affidavits and other evidence from Patricia’s commanding officers and the military daycare facility. In its January 10, 2001 order, the juvenile court denied Patricia’s motions to dismiss for lack of subject-matter and personal jurisdiction and found that it had continuing jurisdiction based on its April 2000 order and personal jurisdiction based on Patricia’s permanent residence and/or domicile. The court found that it was not in the best interest of the children to remain in the custody of Patricia, granted guardianship of the children to the grandparents, and ordered Patricia not to pay child support, but to use the funds for visitation travel expenses.

On October 26, 2001, the grandparents filed a petition for contempt alleging that Patricia had removed the children from Piawaii and taken them to Pennsylvania in September, 2001. According to the petition, she was eventually arrested and extradited to Arkansas on a charge of interference with custody. The circuit court ordered Patricia to appear and show cause why she should not be held in contempt. Patricia petitioned this court for a writ of prohibition, and the circuit court stayed the proceeding pending this court’s ruling on her petition. We have jurisdiction pursuant to Ark. Sup. Ct. R. 1-2(a) (3) (2002). Even though the petition is incorrectly filed against the judge rather than the circuit court, we will treat the petition as one against the circuit court. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).

Patricia’s sole argument is that the trial court was without jurisdiction to enter the guardianship order due to a lack of personal jurisdiction because neither she nor her children lived in Arkansas, and she was never properly served with notice. She further argues that because both the arrest warrant for interference with custody and the subsequent order to show cause were based on the guardianship order, the proper remedy is a writ of prohibition.

A writ of prohibition is extraordinary relief that is appropriate only when the trial court is wholly without jurisdiction. St. Paul Mercury Ins. v. Circuit Court, Craighead, 348 Ark. 197, 73 S.W.3d 584 (2002). The writ is appropriate only when there is no other remedy, such as an appeal, available. Id. Prohibition is a proper remedy when the jurisdiction of the trial court depends upon a legal rather than a factual question. Id. We confine our review to the pleadings in the case. Id.

Patricia first contends that the trial court did not have personal jurisdiction over her at the time it granted guardianship to the grandparents because she and the children lived in Hawaii. The resolution of this issue would require us to consider whether Arkansas remained the “home state” as defined by the Uniform Child Custody Jurisdiction and Enforcement Act, codified at Ark. Code Ann. §§ 9-19-101 et seq. (Repl. 2002) and the federal Parental Kidnapping Prevention Act, codified at 28 U.S.C. § 1738A (West 2002). Because such an analysis necessarily turns upon some fact to be determined by the trial court, prohibition is not the proper remedy. Fausett v. Host, 315 Ark. 527, 868 S.W.2d 472 (1994). The related issue of the trial court’s continuing jurisdiction under Ark. Code Ann. § 9-19-202 (Repl. 2002) also involves a similar factual determination.

A writ is the appropriate vehicle to challenge a show-cause order where the petitioner alleges that the contempt proceedings are based on a void order. In Beaumont v. Adkisson, 267 Ark. 511, 593 S.W.2d 11 (1980), we granted a petition for a writ of prohibition where the petitioner alleged that the inferior court was wholly without jurisdiction to hold him in contempt for an order that was void because the court’s ruling was based on an unconstitutional statute. Id. The county judge for Pulaski County was ordered by a circuit court to pay certain county employees’ salaries. Id. Instead of appealing the circuit court’s ruling, the county judge asked the quorum court on two separate occasions to appropriate funds to pay the salaries. Id. After the quorum court rejected his requests, the circuit court ordered the county judge to appear and show cause why he should not be held in contempt. Id. We held as follows:

Since the Act is void, it follows that the respondent court had no jurisdiction to issue its order. In the case of Mears v. Adkisson, 262 Ark. 636, 560 S.W.2d 222 (1978), we held that where a court order was based on an invalid act, the court had no jurisdiction to act and, therefore, its order was void and subject to a writ of prohibition.

Id. at 514, 593 S.W.2d at 13; Duncan v. Kirby, 228 Ark. 917, 311 S.W.2d 157 (1958). Therefore, where the petitioner alleges that the underlying order is void, a writ of prohibition is the appropriate vehicle to challenge a subsequent order for the petitioner to show cause why he or she should not be held in contempt.

The instant case, however, differs from the Beaumont case. Here, Patricia alleges that the underlying order is void for lack of personal jurisdiction, as opposed to alleging that the order is based on an unconstitutional statute.

Generally, matters of personal jurisdiction are not proper subjects for a petition for writ of prohibition. Helm v. Mid-America Industries, Inc., 301 Ark. 521, 785 S.W.2d 209 (1990). This is so because personal jurisdiction generally turns on a fact-intensive question, such as, did the defendant have sufficient contacts with the forum state, or did the defendant purposely avail himself of the protections of the forum state. Id. However, where personal jurisdiction turns on the legal sufficiency of notice, it is no longer a factual question, but is a question of whether service complied with the law. Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999); Fausett & Co., Inc. v. Bogard, 285 Ark. 124, 685 S.W.2d 153 (1985). In this limited area, a writ remains an appropriate remedy because the question is whether the court was wholly without jurisdiction over the person as a matter of law rather than as a question of fact. Green v. Mills, supra. In this case, the question is whether Patricia was served in the manner required by law; therefore, a writ is the appropriate remedy.

Likewise, under similar circumstances, we have concluded that the remedy of appeal would be inadequate. Beaumont v. Adkisson, supra. Similarly, this court has rejected the suggestion by the concurrence thai Patricia should wait until after the contempt proceeding and then appeal:

When it appears to the court having jurisdiction to issue the writ of prohibition, that the lower court, under any conditions, is without jurisdiction to try the accused upon the alleged information filed, to require him to invoke the remedy of appeal, occasioning delay and necessitating a supersedeas bond, or resulting in his being confined in jail pending the determination of his appeal, would work an unnecessary and unreasonable hardship upon the accused.

Duncan v, Kirby, Judge, 228 Ark. at 921, 311 S.W.2d at 160.

Patricia contends that her court-appointed attorney was not empowered to receive notice in her behalf. Patricia argues that she did not receive the notice required by Ark. Code Ann. § 28-65-207(b)(2) in the manner prescribed in Ark. Code Ann. § 28-1-112. The State counters that under section 28-1-112(e) notice may be served upon the party’s attorney of record. Section 28-65-207 (b) (2) provides that notice of a hearing for the appointment of guardianship is to be served upon “[t]he parents of the alleged incapacitated person, if the alleged incapacitated person is a minor . . . .” Ark. Code Ann. § 28-65-207(b)(2) (Supp. 2001). Section 28-l-112(e) of the Probate Code provides as follows:

Service on Attorney. If there is an attorney of record for a party in a proceeding or matter pending in the court, all notices required to be served on the party in the proceeding or matter shall be served on the attorney, and this service shall be in lieu of service upon the party for whom the attorney appears.

Ark. Code Ann. § 28-1-112(e) (Supp. 2001). It is undisputed that service was made on Patricia’s attorney of record. Thus, the service of notice was in compliance with Ark. Code Ann. § 28-1-112(e).

Based on the arguments presented in support of the petition, we conclude it is not apparent on the face of the pleadings that the trial court is wholly without jurisdiction. Accordingly, we deny the writ.

Writ of prohibition denied.

Corbin, Thornton, and Hannah, JJ., concurring.

Arnold, C.J., not participating.

Jim Hannah, Justice,

concurring. I agree with the majority’s decision that we should deny the petition for a writ of prohibition in the present case. I disagree with the majority’s broad statements that “[a] writ is the appropriate vehicle to challenge a show-cause order where the petitioner alleges that the contempt proceedings are based on a void order,” and that “where the petitioner alleges that the underlying order is void, a writ of prohibition is the appropriate vehicle to challenge a subsequent order for the petitioner to show cause why he or she should not be held in contempt.” The majority is expanding the use of a writ of prohibition. In the present case, Patricia’s proper remedy was an appeal of the juvenile court’s January 10, 2001, order granting guardianship to the paternal grandparents, not a petition for a writ of prohibition to prevent the juvenile court from proceeding with an order to show cause hearing.

I must note that Patricia has named the individual judge as respondent to her petition. This is incorrect. Prohibition lies to the circuit court and not to the individual judge. Pike v. Benton County Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000). The petition may be treated as one against the circuit court. Id.

A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. St. Paul Mercury Ins. v. Circuit Court, Craighead, 348 Ark. 197, 73 S.W.3d 584 (2002). A writ of prohibition is appropriate only when there is no other remedy, such as an appeal, available. Pike, supra. The remedy of appeal was available to Patricia; however, she chose not to avail herself of that remedy. Instead, Patricia failed to comply with the juvenile court’s order and, as a result, the paternal grandparents filed a petition for contempt on October 26, 2001. On November 8, 2001, the juvenile court entered an order to show cause for Patricia. Thereafter, Patricia filed a petition for a writ of prohibition with this court.

The juvenile court entered an ex parte temporary guardianship order on September 29, 2000. As a result of hearings in October and December 2000, at which Patricia was represented by counsel, and where the juvenile court heard evidence presented by the paternal grandparents and Patricia concerning the guardianship and Patricia’s motions to dismiss, the juvenile court entered an order on January 10, 2001, granting guardianship to the paternal grandparents, denying Patricia’s motions to dismiss for lack of subject-matter jurisdiction and personal jurisdiction, and finding that the juvenile court had subject-mater jurisdiction and personal jurisdiction. Patricia never filed a notice of appeal. However, in her petition for a writ of prohibition, which was not filed until May 13, 2002, Patricia raises arguments that she could have included in an appeal within thirty days of the January 10, 2001, order. The majority’s statement that “[a] writ is the appropriate vehicle to challenge a show-cause order where the petitioner alleges that the contempt proceedings are based on a void order,” has the effect of extending the time for an appeal and expanding the use of a writ of prohibition. Based on the majority’s assertion, a petitioner does not lose the right to an appeal if he or she alleges that there is a void order at the inferior court.

The majority’s reliance on Duncan v. Kirby, Judge, 228 Ark. 917, 311 S.W.2d 157 (1958), is misplaced. The majority quotes Duncan, supra, where the court stated:

When it appears to the court having jurisdiction to issue the writ of prohibition, that the lower court, under any conditions, is without jurisdiction to try the accused upon the alleged information filed, to require him to invoke the remedy of appeal, occasioning delay and necessitating a supersedeas bond, or resulting in his being confined in jail pending the determination of his appeal, would work an unnecessary and unreasonable hardship upon the accused.

Duncan v. Kirby, Judge, 228 Ark. at 921, 311 S.W.2d at 160 (quoting Evans v. Willis, 97 P. 1047 (Okla. 1908)). Duncan is not on point. In Duncan, the petitioner was found guilty of refusing to obey the lawful orders of an officer of the United States Army, even though the alleged offense was not a punishable crime under State law. Duncan, supra. The Duncan court found that the inferior court was without jurisdiction to try the petitioner for a crime which, under the laws of the State, did not exist.

The situation is different in the present case. Unlike Duncan, this case involves the enforcement of a juvenile court order, not the trial of an individual for a crime that did not exist under State law. Clearly, in Duncan, the trial court was whoEy without jurisdiction. In the present case, after the January 10, 2001, order was entered, Patricia was in no danger of being confined to jail pending the determination of the áppeal. Patricia did not aEege that invoking the remedy of appeal, subsequent to the entry of the January 10, 2001, order, would have created an unworkable and unreasonable hardship for her and her chüdren.

The juvenile court is not whoEy without jurisdiction. The January 10, 2001, order is a valid, enforceable order of the juvenile court. Patricia failed to comply with the order, and she chose not to appeal the order. The juvenile court, exercising its inherent power, has ordered Patricia to appear to show cause why she has not complied with the court’s orders. If Patricia is found in contempt, she can appeal the contempt order.

Though a writ of prohibition may be Patricia’s preferable remedy, it is not the proper remedy. An appeal of the juvenEe court’s order would have been the correct remedy at law. See Pike, supra. My research has revealed no case, and the majority faüs to cite any case, where a writ of prohibition has been granted where the following has occurred prior to the filing of a petition for a writ of prohibition:

1. The party is represented by counsel at the hearing;
2. The party presents evidence at the hearing;
3. The party argues a motion to dismiss based on lack of subject-matter jurisdiction and personal jurisdiction;
4. The juvenile court denies the motion to dismiss;
5. The juvenEe court finds that it has subject-matter jurisdiction and personal jurisdiction;
6. The juvenEe court enters a final order; and
7. The party does not appeal the final order, and the time for appeal expires.

The reason we have not found a case is because none exists. A writ of prohibition is not appropriate unless the trial court is wholly without jurisdiction. St. Paul Mercury Ins., supra. Here, the juvenile court is not wholly without jurisdiction. Also, a writ of prohibition is only appropriate when there is no other remedy available. Pike, supra. Here, Patricia could have appealed the January 10, 2001, order. By stating that a writ of prohibition is the appropriate vehicle in the present case, the majority is expanding the applicability of the writ of prohibition.

I concur with the majority’s decision that the petition for a writ of prohibition should be denied.

Corbin and Thornton, JJ., join this concurrence.

       By virtue of Amendment 80 to the Arkansas Constitution, which became effective on July 1, 2001, our state courts are no longer chancery and circuit courts. These courts have merged and now carry the designation of “circuit court.”

       The State also contends that service was in compliance with Ark. R. Civ. P. 5 (2002). However, there may be a conflict between the provisions of Rule 5 and section 28-l-112(e). Rule 5(b) requires service on the party, not the attorney, “in a case where there is a final judgment but the court has continuing jurisdiction.” Office of Child Support Enforcement v. Ragland, 330 Ark. 280, 286, 954 S.W.2d 218, 221 (1997) (superseded in part by amendments to Rule 5). The resolution of this potential conflict depends on whether this is a civil action or a special proceeding that would be exempted from our rules of civil procedure under Ark. R. Civ. P. 81(a) (2002). We decline to address the issue because it was neither raised nor briefed by the petitioner.


source: Caselaw Access Project

author: Ray Thornton, Justice.

license: Public Domain

text:
    Phillip HATFIELD and Christine Hatfield v. John A. THOMAS, Clark Circuit Court; and Harold F. Kidd
    02-794
    93 S.W.3d 671
    Supreme Court of Arkansas
    Opinion delivered December 19, 2002

      McMillan, Turner, McCorkle & Curry, LLP, by: F. Thomas Curry, for petitioner.
    G. Randolph Satterfield, for respondent.
   Ray Thornton, Justice.

Petitioner, Harold F. Kidd, filed a complaint against Christine and Phillip Hatfield and Lori Amis d/b/a Lori Amis Interiors in the Clark County Circuit Court involving a contract for sale of furniture to a Florida hotel. The complaint alleged that the furniture belongs to the Hatfields, who are residents of Florida. The complaint also stated that Mr. Kidd manufactured, sold, delivered, and installed hotel furniture for the Hatfields for the total amount of $98,933.37. The complaint alleges that the Hatfields paid part of the amount but that $18,025.76 of the balance remains. The Hatfields responded with a motion to dismiss under Rule 12(b)(2) of the Arkansas Rules of Civil Procedure for failure to show facts that establish the jurisdiction of this State’s circuit court. Ms. Amis did not join in the motion. Mr. Kidd responded that basis for jurisdiction is that the furniture manufacturing company is based in Arkansas and that the manufacturing took place in this State. The circuit court denied the motion to dismiss. The Hatfields seek a writ of prohibition to prevent the circuit court from exercising jurisdiction over this case.

A writ of prohibition is issued to prevent or prohibit the lower court from acting wholly without jurisdiction. Arkansas Democrat-Gazette v. KFSM-TV, 341 Ark. 771, 20 S.W.3d 301 (2000). The purpose of the writ of prohibition is to prevent a court from exercising a power not authorized by law when there is no adequate remedy by appeal or otherwise. Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998). Writs of prohibition are prerogative writs, extremely narrow in scope and operation, and they are to be used with great caution and forbearance. Monroe Auto Equipment Co. v. Partlow, 311 Ark. 633, 846 S.W.2d 637 (1993). Prohibition should issue only in such cases of extreme necessity. Id. A characteristic of prohibition is that it does not lie as a matter of right but as a matter of sound judicial discretion. Id. When considering a petition for writ of prohibition, jurisdiction is tested on the pleadings, not the proof. Nucor-Yamamato Steel Co. v. Circuit Court for the Osceola District of Mississippi County, 317 Ark. 493, 878 S.W.2d 745 (1994). A writ of prohibition is appropriate only when there is no other remedy, such as an appeal, available. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).

A review of the pleadings reveals that the writ of prohibition is not warranted. There are sufficient facts in the pleadings to indicate that the contract was at least partially performed in Arkansas, and therefore jurisdiction in this State may be proper. In Mr. Kidd’s complaint, he stated that pursuant to the contract between the parties, the manufacture and partial transport of the furniture was performed in Arkansas. Given the narrow scope and operation of a writ of prohibition, and the availability of another adequate remedy, such as an appeal, we hold that writ of prohibition would not be appropriate.

Denied without prejudice.


author: Per Curiam.

text:
    ARKANSAS DEPARTMENT of HUMAN SERVICES v. The Honorable Linda P. COLLIER, Judge
    02-1021
    92 S.W.3d 683
    Supreme Court of Arkansas
    Opinion delivered December 16, 2002
    Order Directing Attorney General to File Brief on Behalf of Respondent.

      Richard Neil Rosen, Office of Chief Counsel, for petitioner.
    No response.
   Per Curiam.

Arkansas Department of Human Services has petitioned this court for a writ of prohibition, or, in the alternative, a writ of certiorari, to prevent the Faulkner County Circuit Court from enforcing its order declaring an unborn fetus dependent-neglected and ordering DHS to provide prenatal care to the fetus’s mother. This case will be submitted for decision on January 9, 2003. Upon reviewing the materials included in the petitioner’s abstract and addendum, it is apparent that petitioner’s abstract is deficient in that the hearing held on petitioner’s motion to set aside the trial court’s order is not abstracted. Accordingly, we are deferring action on this appeal until the petitioner fully complies with the provisions of Ark. Sup. Ct. R. 4-2.

Supreme Court Rule 4-2(b)(3) explains the procedure to be followed when an appellant or petitioner has failed to supply this court with a sufficient brief. The rule provides:

Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4-2 (a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

Ark. S. Ct. R. 4-2(b)(3).

We hereby order the petitioner to submit a revised or supplemental abstract that contains an abstract of the hearing to set aside the trial court’s order as well as all material parts of the testimony of the witnesses and colloquies between the court and counsel necessary to an understanding of all questions presented to the court for decision. Petitioner is directed to file a complying abstract and brief within seven days from the entry of this order, due to the fact that this case was expedited by our order of October 24, 2002.

We further note our concern that no one has responded on behalf of Judge Collier to DHS’s petition. The file of the Clerk of Supreme Court reflects that the Attorney General’s Office was mailed a copy of the petitioner’s brief on November 13, 2002. Due to the expedited briefing schedule, the respondent’s brief was due November 27, 2002. No brief was received. Because a response would assist this court in deciding the merits of DHS’s petition, we direct the Attorney General to file a response on behalf of Judge Collier within fourteen days of the filing of petitioner’s revised abstract and brief.

Rebriefing ordered.

Attorney General directed to file respondent brief.


text:
    Richard L. HAMILTON v. Teddy D. JONES, et al.

    02-749
    93 S.W.3d 694
    Supreme Court of Arkansas
    Delivered December 19, 2002

      S. Butler Bernard, Jr., for appellant.
    No response.
   Per Curiam.

Attorney S. Butler Bernard, Jr., represents appellant Richard Hamilton. A notice of appeal was filed on Mr. Hamilton’s behalf, and the appellate record was subsequently filed in this court. On September 5, 2002, we granted appellant’s petition for writ of certiorari to complete the record to be returned by October 5, 2002. On September 24, 2002, we granted this extension and noted that it was a final extension. The final deadline for Mr. Bernard to return the writ was December 8, 2002. The deadline was not met; instead, on December 6, 2002, Mr. Bernard filed a motion for an extension of time in which to return the writ. In the motion, Mr. Bernard explained that court reporter, Iris Brooks, had told him that she would not have the record ready to file until the next week.

Based on the circumstances described above, we order Ms. Brooks to appear before this court on Thursday, January 16, 2003, at 9:00 a.m. to show cause why she should not be held in contempt for failing to prepare the record on or before the appropriate time, as previously ordered.


text:
    Allan Wayne HUDSON v. STATE of Arkansas
    CR 02-1283
    93 S.W.3d 694
    Supreme Court of Arkansas
    Opinion delivered December 19, 2002

      Montgomery, Adams & Wyatt, by: Dale E. Adams, for appellant.
    No response.
   Per Curiam.

Appellant, Allan Wayne Hudson, by and through his attorney, has filed a motion for rule on the clerk. Attorney Dale E. Adams admits by motion that the appeal was not timely filed due to a mistake on his part.

We find that such an error, admittedly made by an attorney for a criminal defendant,' is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    IN RE: Kenneth George FUCHS (Arkansas Bar ID # 81063)
    02-1234
    93 S.W.3d 695
    Supreme Court of Arkansas
    Delivered December 19, 2002
   Per Curiam.

On November 15, 2002, the Supreme Court Committee on Professional Conduct filed a petition in this court seeking an order requiring Kenneth George Fuchs to show cause why he should not be held in contempt by this court for willfully disobeying orders issued by the Committee directing Mr. Fuchs to pay restitution to three individuals. Mr. Fuchs has not responded to the petition.

The petition reflects three separate instances involving bank trust account overdrafts where the Committee either cautioned or reprimanded Mr. Fuchs and required him to make restitution in the total amount of $2,000. The orders were issued on September 3, 2002. According to the petition, Mr. Fuchs has failed to pay the restitution and has failed to communicate with the Committee as to why he cannot pay the sanctions.

Pursuant to the Committee’s petition, we order Mr. Fuchs to appear before this court at 9:00 a.m. on January 23, 2003, for consideration of the relief requested in the petition, including why he should not be held in contempt.

It is so ordered.


author: Per the Curiam.

text:
    LAKE VIEW SCHOOL DISTRICT NO. 25 of Phillips County, Arkansas, et al. v. Governor Mike HUCKABEE; Senator Mike Beebe, President Pro Tempore of the Senate; Representative Shane Broadway, Speaker of the House; State Auditor Gus Wingfield; State Treasurer Jimmie Lou Fisher; Director of the Arkansas Department of Education Raymond Simon; Arkansas State Board of Education Members Luke Gordy, William Fisher, Jonell Caldwell, Anita Yates, Lewis Thompson, Claiborne Deming, Richard Smith, Betty Pickett, Robert Hackler, and Shelby Hillman; and Director of the Arkansas Department of Finance and Administration Richard Barclay
    01-836
    94 S.W.3d 340
    Supreme Court of Arkansas
    Opinion delivered December 19, 2002

      E. Dion Wilson; Don Trimble; and Lewellen & Associates, for appellant class; and Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, special attorney for appellant class.

      Mark Pryor, Att’y Gen., by: Dennis R. Hansen, Deputy Att’y Gen.; Brian G. Brooks, Sr. Ass’t Att’y Gen.; and Timothy G. Gauger, Ass’t Att’y Gen., for State appellees.
   Per the Curiam.

The appellees, collectively referred to as the State, have filed a motion for award of costs pursuant to Ark. R. Sup. Ct. 4-2(b)(l), against the appellant, Lake View and its counsel. Lake View did not file a response to the motion. The basis for the State’s motion is Ark. Sup. Ct. R. 4-2(b)(l) which provides:

If the appellee considers the appellant’s abstract or Addendum to be defective, the appellee’s brief should call the deficiencies to the Court’s attention and may, at the appellee’s option, contain a supplemental abstract or Addendum. When the case is considered on its merits, the Court may upon motion impose or withhold costs, including attorney fees, to compensate either party for the other party’s noncompliance with this Rule. In seeking an award of costs under this paragraph, counsel must submit a statement showing the cost of the supplemental abstract or Addendum and a certificate of counsel showing the amount of time that was devoted to the preparation of the supplemental abstract or Addendum.

The State asserts it is entitled to an award of $17,932.73 for the costs it incurred in preparing a new abstract and addendum and notes that the figure includes the costs of photocopying the supplemental abstract and addendum and the costs of secretarial overtime incurred in its preparation.

In this instance, the State first called the deficiencies in Lake View’s abstract to this court’s attention by way of its motion for an extension of time to prepare a new abstract filed on May 1, 2002. The State’s sole allegation was that Lake View’s abstract was deficient, inaccurate, misleading, and full of typographical and grammatical errors. In our per curiam of May 30, 2002, we found the motion to be well-taken and granted it. See Lake View Sch. Dist. No. 25 v. Huckabee, 349 Ark. 116, 76 S.W.3d 250 (2002) (per curiam). We directed the State to prepare a new abstract. See id. At no point, however, did this court address the matter of a deficient addendum; nor did we direct the State to prepare a new one. See id. Accordingly, we deny the State’s motion for costs at this time. Because the State’s certificate of counsel setting forth the costs incurred does not distinguish between the State’s expenses in preparing a new abstract and those incurred in the preparation of a new addendum, we direct the State to submit an amended statement showing the costs of the supplemental abstract and a certificate of counsel showing the amount of time devoted to the preparation thereof, in accordance with our rule. Upon the filing of a new motion for costs pertaining only to preparation of the abstract, we will reconsider the matter.

Motion denied.

Imber, J., not participating.

Special Justice Carol Dalby joins.


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

text:
    ARKANSAS COUNTY v. DESHA COUNTY; Arkansas Electric Cooperative Corporation; Public Service Commission
    01-1085
    94 S.W.3d 888
    Supreme Court of Arkansas
    Opinion delivered January 9, 2003

      Pike & Bliss, P.A., by: George E. Pike, Jr., and Deborah Pike Bliss, for appellant.

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Marsha Talley Ballard; Robert M. Lyford; and Stephen P. Williams, for appellee Arkansas Electric Cooperative Corporation.
   WH. “Dub” Arnold, Chief Justice.

This appeal involves approximately $1.2 million in annual ad valorem tax revenue from a hydroelectric generating station (hereinafter the “HydroPlant”) on the Arkansas River. The Legislature initially set the Arkansas River as the boundary between Arkansas County and Desha County in the vicinity of the HydroPlant, which sits on a peninsula or point ofland known as Stillwell Point. Although the taxes on the HydroPlant have always gone to Desha County, Arkansas County now asserts that the facility is actually located in Arkansas County. We hold that the trial court correctly found that Arkansas County’s claim is barred by laches, and we therefore affirm.

Jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2(a) (7), as there was a previous appeal to the Supreme Court. The first appeal followed the trial court’s dismissal of the complaint on the grounds that the complaint should have been heard by the Public Service Commission. This court reversed and remanded for trial in the Arkansas County Chancery Court. See Arkansas County v. Desha County, 342 Ark. 135, 27 S.W.3d 379 (2000).

After a trial on the merits, the trial court found that the Arkansas River boundary was in an old riverbed immediately east of the HydroPlant, in Desha County. The trial court found that the boundary between Arkansas County and Desha County did not change when the Arkansas River cut across the neck of Still-well Point because the Arkansas River did not move from east of Stillwell Point to west of Stillwell Point by the process of accretion. The trial court’s ruling was based on the exception to the general rule that river boundaries move as the river moves, except when a new channel is created by a sudden and perceptible avulsion. The trial court further found that Arkansas County was barred by laches from seeking to establish its true boundary because it neglected to start to establish the boundary until the HydroPlant announced its plans to build at the site.

Appellee Arkansas Electric Cooperative Corporation (hereinafter “AECC”) has remained neutral on the issue of whether the HydroPlant is located in Arkansas County or Desha County, and AECC asserts no position on this issue. AECC states that it has no interest in a final determination of the identity of the recipient of tax revenue to be derived from the HydroPlant. AECC’s asserts that its only interest is to pay any tax due to the correct taxing authority.

Arkansas County brings two points on appeal: first, that the trial court committed error by creating a new exception to the general rule that river boundaries move with the river, and second, that the trial court erred in holding that Arkansas County was barred by laches from filing this litigation to establish its true boundary. We affirm the trial court’s finding that Arkansas County’s claim is barred by laches from asserting any claim of sovereignty over the site five decades after its alleged claim arose, and, therefore, we do not reach the argument of whether the trial court erred in finding that the boundary changed or did not change due to accretion or avulsion.

To better understand the issues in this case, a brief introduction of the facts is beneficial. At the time that the Legislature fixed the Arkansas River boundary between Arkansas County and Desha County, Stillwell Point was on the west, or Desha County, side of the Arkansas River. In the early 1940s, the Arkansas River changed course by cutting across the neck of Stillwell Point, possibly by floods in 1941, 1942, 1943, 1944, and 1945. As a result of this cut across the neck of Stillwell Point, Stillwell Point was now located east of the Arkansas River.

The trial court stated in its decree:

The cutoff is dramatically illustrated by comparing Corps of Engineers aerial photographs and charts of 1940, 1943, 1945 and 1946 (Desha County Exhibits 23, 24 and 26; Arkansas County Exhibits A4 and A5). The cutoff is also clearly shown on the survey prepared by I. Bankston, Desha County Deputy Surveyor, and T.J. Strode for Mrs. W.J. Stillwell in August and September 1944 (Desha County Exhibit 3).

Although the Arkansas River was now west of Stillwell Point, the landmass comprising Stillwell Point was left intact.

For almost fifty-five years, the fact that the Arkansas River cut across the neck of Stillwell Point was of no consequence. For all purposes Desha County claimed and exercised control over Stillwell Point. Real property, tax and school district records continued to demonstrate that Stillwell Point was, as it always had been, in Desha County. Arkansas County did not exercise or attempt to exercise any control over, or make any claim with respect to, Stillwell Point.

Further, Arkansas County failed in its efforts to show that it ever assessed or collected taxes on Stillwell Point. Stillwell Point became the focus of Arkansas County’s attention when the PlydroPlant announced its intention of budding on the site. Then, Arkansas County commenced this litigation with a complaint in Arkansas County Chancery Court in 1999. Arkansas County claimed that as a result of the Arkansas River cutting across the neck of Stillwell Point decades ago in the 1940s, it can now take Stillwell Point as a part of Arkansas County. Arkansas County asserts that it acquired Stillwell Point, and Desha County lost Stillwell Point, more than a half of a century ago, since the boundary between the counties changed fifty-five years ago by the process of accretion. Flowever, we do not resolve whether the boundary changed due to accretion or avulsion, because Arkansas County is barred by laches from asserting any claim of sovereignty over the site decades after its alleged claim arose.

The trial court found that the real property, tax and school district records introduced by Desha County proved that Desha County claimed and exercised control over the HydroPlant site both before and after the cutoff occurred. The trial court also found that Arkansas County neither exercised nor attempted to exercise control over the site until after the HydroPlant plans were made public, some fifty years after it allegedly became part of Arkansas County. This finding by the trial court is entitled to deference and will not be reversed unless this court finds that the trial judge was clearly erroneous. Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999).

The trial court held that Arkansas County’s long acquiescence in Desha County’s taxation and exercise of control over the site constituted laches, not equitable estoppel as wrongly asserted by Arkansas County. Although closely related, the defenses of laches and equitable estoppel are not identical.

The doctrine of laches is based on a number of equitable principles that are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. It is based on the assumption that the party to whom laches is imputed has knowledge of his rights and the opportunity to assert them, that by reason of his delay some adverse party has good reason to believe those rights are worthless or have been abandoned, and that because of a change of conditions during this delay it would be unjust to the latter to permit him to assert them. Laches requires a demonstration of prejudice to the party alleging it as a defense resulting from a plaintiffs delay in pursuing a claim.

Goforth, 338 Ark. at 77-78, 991 S.W.2d at 586-87 (citations omitted). Accordingly, this case involves laches, and not equitable estoppel, because the trial court correctly determined that Arkansas County permitted Desha County to exercise control over and rely upon the taxes from the HydroPlant site.

Nevertheless, Arkansas County asserts that the facts are that the only governmental activity that was available to Arkansas County after the Arkansas River’s relocation was to collect a few pennies of taxes on the few acres occupied by the future site of the HydroPlant. In 1954, Desha County continued its practice of collecting real estate taxes on the wild and unimproved overflow timberland of the amount of six cents per acre.

Arkansas County contends that by 1958, the United States Corps of Engineers was building a bank stabilization and navigation system of the Arkansas River, which would require acquisition. And, in 1964, the United States took title to the site and caused it to be tax exempt by filing its condemnation suit. Therefore, Arkansas County argues that there was only a window between 1945 and 1958 in which Arkansas County could be accused of failing to exercise governmental authority (taxation) over the disputed area. No taxes of any nature could be collected from the site after it became exempt in 1964 until AECC began building its taxable HydroPlant in 1994 on property leased from the United States. Arkansas County contends that the facilities of the HydroPlant became taxable in 1995. Hence, for the first time in history, Arkansas County would be derelict in its duty if it did not fight to collect substantial taxes on the said property.

The facts of this case are similar to those in Magnolia Special School District, No. 14 v. Rural Special School District, No. 3, 302 Ark. 49, 149 S.W. 579 (1941). In that case, the plaintiff school district acquiesced in the defendant school district’s taxation and exercise of control over certain unimproved sections of land for roughly ten years. Then, when oil was discovered in the area, the plaintiff school district asserted a claim. This court held that the plaintiff school district, having slept on its rights for ten years, was barred from asserting its claim. Magnolia, supra.

Here, even if Arkansas County had ever had any rights to Stillwell point, it slept on those rights for years. As a result of this silence, Arkansas County is barred from asserting that the HydroPlant site is in Arkansas County. Arkansas County does not dispute the fact that it sat on its alleged rights for five decades. Instead, Arkansas County argues that for all those years Stillwell Point simply was not worth the trouble, and until recently it made no economic sense to try and take Stillwell Point from Desha County because the taxes collected by Desha County were not worth the expense.

The trial court’s finding that as a matter of fact that Desha County always exercised control over Stillwell Point was not clearly erroneous. The trial court concluded that as a matter of law Arkansas County was guilty of laches. Therefore, the trial court correctly held that, even if the HydroPlant site had become part of Arkansas County by accretion, Arkansas County was guilty of laches.

Affirmed.

Hannah, J., not participating.


author:
Robert L. Brown, Justice.
      Tom Glaze, Justice,

text:
    Rex E. BRADFORD v. STATE of Arkansas
    CR 02-570
    94 S.W.3d 904
    Supreme Court of Arkansas
    Opinion delivered January 9, 2003
    [Petition for rehearing denied February 13, 2003]

      Etoch & Halbert Law Firm, by: Louis A. Etoch, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.

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

   Robert L. Brown, Justice.

This appeal is brought by the appellant, Rex Bradford, from a judgment and commitment order sentencing him to three five-year sentences to be served consecutively. Bradford asserts that the trial court erroneously sentenced him, sua sponte, to consecutive sentences in violation of a plea agreement and an earlier pronouncement of sentence in open court. Because Bradford was not advised by the trial court of his right to affirm or withdraw his guilty plea in open court, which violated Ark. R. Crim. P. 25.3(b), we reverse and remand.

On February 25, 2002, Bradford entered a plea of guilty to three separate felonies pursuant to a plea agreement negotiated with the prosecuting attorney. The felonies included two counts of possession of methamphetamine and one count of possessing and manufacturing marijuana. During the hearing before the trial court on that date, Bradford stated that he signed the plea agreement submitted to the court, that he understood he could receive anywhere from three to thirty years in prison for the charged offenses, that he had a right to a trial by jury, that he had a right to confront witnesses, and that he had the right to appeal the trial court’s decision, if he proceeded to trial. Fie further stated his intention to waive these constitutional rights and to plead guilty. The court then accepted the plea agreement and made it part of the record. Bradford next stated that he had discussed the minimum and maximum penalties with his attorney and that he was entering his guilty plea freely and voluntarily. FFe also stated that he understood that the State’s recommendation was not binding on the court and that the actual disposition by the trial court could differ from his plea agreement with the prosecutor.

The trial court found that in all three cases, Bradford had freely and voluntarily waived his right to a jury trial and entered a plea of guilty. He further found that there was a factual basis for his plea. The court adjudged Bradford guilty on all counts and questioned the parties as to sentencing:

The Court: . . . What is the State’s recommendation?
The State: Your Honor, that on each of the charges, the defendant is sentenced to five years in the Arkansas Department of Correction. Those sentences are to run concurrently with one another.
The Court: Is that your recommendation, Mr. Etoch, of what the recommendation would be?
Defense Counsel: Yes, sir.
The Court: What is the recommendation regarding the sentences being concurrent or consecutive?
The State: Concurrent.

The trial court then pronounced judgment, which was five years on each count, to be served concurrently.

Eight days later, on March 5, 2002, the trial court issued an order sua sponte directing Bradford to appear in open court for resentencing. On March 7, 2002, the trial court held the resentencing hearing. A conversation in chambers regarding this matter apparently occurred with counsel and the trial court before the hearing commenced, but it was not transcribed. At the hearing, Bradford requested due process, including notice and an opportunity to respond. The prosecutor answered that the trial court could not resentence a defendant after execution of the judgment, which is defined as a formal entry of judgment and commitment or actual physical placement of the defendant in the Department of Correction. The prosecutor took the position that neither event had occurred in this case. The trial court agreed.

Various witnesses were then called. The court heard from Freddie Flouston, who had compiled a pre-sentence report on Bradford and found Bradford’s presumptive sentence to be thirty months. Bradford attempted to call the prosecuting attorney who had negotiated the plea agreement, but he was out of town. • The trial court ruled that Bradford could have subpoenaed the prosecuting attorney and denied Bradford’s motion for a continuance on that basis. Melanie Bradford next took the stand on behalf of her husband. She testified that he was a good husband, father, and worker, and that it would, be a hardship on the family for him to go to prison. The State, on rebuttal, called Dale Arnold, a Criminal Narcotics Investigator for the Arkansas State Police, who testified to the events stemming from a search warrant executed on Bradford’s home on October 25, 2001, which led to the drug arrests.

In its ensuing ruling and sentence, the trial court noted that the execution of sentence had not commenced, that Bradford had remained at liberty, and that its judgment and commitment order had not been entered. The court concluded that it could revisit the previous sentence pronounced in open court. The court sentenced Bradford to five years on each of the three charges, to be served consecutively. On request by Bradford, the court cited its reason for departure from the recommended thirty months as “based on the record produced today in this hearing in its entirety.” The trial court granted Bradford’s request for an appeal bond, and Bradford now brings this appeal.

Bradford argues, as his primary point, that he is entitled to rely upon the sentence he received in open court on February 25, 2002. He cites Ark. Code Ann. § 16-65-121 (Supp. 2001), in support of his argument, which reads: “All judgments, orders, and decrees rendered in open court by any court of record in the State of Arkansas are effective as to all parties of record from the date rendered and not from the date of entry of record.” He further contends that it “violates common principles of fundamental fairness and due process” to permit the trial court to come back ten days later and change its mind. Because the sentence pronounced on February 25, 2002, was in effect, Bradford maintains that the trial court lacked authority to change the sentences from running concurrently to consecutively. Bradford admits that he openly acknowledged that his disposition of sentence could differ from that negotiated with the prosecutor, but he claims that he was never told that after being sentenced in open court, “the judge could change his mind at a later time and re-sentence him to a greater amount of time.”

In the alternative, Bradford urges that he should have been given the chance to withdraw his plea if the trial court was not going to sentence him in accordance with the negotiated plea.

The State contends that Bradford is barred from appealing this matter because he pled guilty, and this court has no authority to hear this appeal. The State claims that this appeal does not fall within any of the acknowledged exceptions to the general rule precluding appeals from guilty pleas. Moreover, the State asserts that the trial court did have authority to change Bradford’s sentence before the entry of the judgment and commitment order. The State further emphasizes that the trial court gave notice of its intent to resentence him and held a hearing on the matter. Had Bradford wanted to withdraw his guilty plea, according to the State, he could have motioned the court accordingly, but he failed to do that.

The State is correct that Arkansas Rule of Appellate Procedure — Criminal 1(a) reads that “[e]xcept as provided in by ARCrP 24.3(b) there shall be no appeal from a plea of guilty[,]” Ark. R. App. P. — Crim. 1(a). This court has endorsed that principle on several occasions. See, eg., Reeves v. State, 339 Ark. 304, 5 S.W.3d 41 (1999). However, this court has also approved two additional exceptions to this rule, as outlined in our decision in Reeves v. State, supra. Those exceptions are: (1) an appeal relating to an issue involving testimony or evidence which occurred during a sentencing trial before a jury following a guilty plea; and (2) an appeal from a postjudgment motion to amend an incorrect or illegal sentence following a guilty plea. See id.

This court addressed a situation similar to the matter at hand in State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990). In Sherman, the defendant entered a guilty plea, which was accepted by the trial judge, and he was informed that his offense carried a possible sentence of three to ten years in prison. After accepting his plea, the trial court delayed imposition of sentence. Upon receiving the pre-sentence investigation report, the trial court decided, sua sponte, to sentence Sherman to thirty years as a habitual offender, even though the appellant was not charged as a habitual offender and was not informed at the plea hearing that prior convictions would be used to enhance his sentence. On appeal, the court of appeals modified the sentence to ten years. On review, this court dismissed the appeal altogether for lack of jurisdiction and said:

The appellant challenges the validity of the sentence he received as a direct result of his guilty plea. Therefore, the appeal is from a sentencing procedure which was an integral part of the acceptance of the appellant’s guilty plea. The appeal must be dismissed.
The appellant is not left without a remedy. A motion to correct an illegal sentence may be filed subsequent to the dismissal of this appeal. Ark. Code Ann. § 16-90-lll(b) (Supp. 1989). In the alternative, the appellant may seek relief under A. R. Cr. P. Rule 37. See Brown v. State, 290 Ark. 289, 718 S.W.2d 937 (1986) (motion to withdraw guilty plea filed after sentencing may be treated as a Rule 37 petition). Even though Rule 37 was abolished in Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989), the appellant was sentenced while the rule was still in effect.

State v. Sherman, 303 Ark. at 286-87, 796 S.W.2d at 340.

Subsequent to State v. Sherman, supra, this court decided Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994). In Hill, the defendant pled guilty to robbery, and a jury was empaneled to decide his sentence. He was sentenced to fifteen years. Hill appealed and asserted error in the sentencing hearing by the admission of evidence that he had previously attempted to rob the victim. The State objected to an appeal from a guilty plea. The issue before this court was whether the 1993 bifurcation statute, Ark. Code Ann. § 16-97-101 (Supp. 2001), conflicted with our rule disallowing appeals from guilty pleas. We held that the statute did not conflict for the reason that sentencing was now a separate proceeding held subsequent to the guilty plea. Thus, errors that occurred in the sentencing proceeding itself could be appealed.

The Hill reasoning is applicable to the instant case. The sentencing hearing took place separate and apart from the guilty plea. As a result, we will not dismiss this appeal as one from a guilty plea but will proceed to decide the case on the merits.

As an initial matter, the State is correct that a judgment and commitment order is not effective until it is entered of record. It is true that § 16-65-121 reads that a judgment rendered in open court is effective from the date it is rendered, but it is also true that the statute has been superseded in civil matters by Ark. R. Civ. P. 58, which provides that a judgment is effective upon entry of record. See Price v. Price, 341 Ark. 311, 16 S.W.3d 248 (2000). In Price, we said that “[t]o protect what we hold inviolate we now declare that we will defer to the General Assembly, when conflicts arise, only to the extent that the conflicting court rule’s primary purpose and effectiveness are not compromised; otherwise, our rules remain supreme.” 341 Ark. at 315, 16 S.W.3d at 251. This principle that a judgment is effective upon entry of record, which occurs when it is filed, is also emphasized in Administrative Order No. 2 of this court.

The same supersession principle holds true for criminal judgments. In Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997), this court cited to Ark. R. Civ. P. 58 in holding that this court’s prior decision in Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986), “that a judgment of conviction and a sentence are ‘entered’ and ‘placed into execution’ upon pronouncement in open court[,]” was inconsistent. 330 Ark. at 388, 953 S.W.2d at 886 (emphasis added). We observed that the statement conflicted with our Administrative Order No. 2, which describes entry of judgment as filing of record, and our rule for civil cases which clearly provides for the effectiveness of judgments upon their entry of or filing. Furthermore, we note on this point that were we to use the legislature’s effective date of judgment under § 16-65-121, several of our criminal rules would be called into question. See, e.g., Ark. R. App. P. — Crim. 2(a)(1) (setting the time in which an appeal must be taken within thirty days from “the date of entry of a judgment”); Ark. R. App. P. — Crim. 10(a) (directing the circuit court, upon imposing a sentence of death, to order the circuit' clerk to file a notice of appeal on behalf of the defendant within thirty days “after entry of judgment”).

We hold that with respect to judgment and commitment orders, they are effective upon entry of record in accordance with our Administrative Order No. 2. Section 16-65-121 directly conflicts with our rules, our Administrative Order, and our caselaw, and it is superseded. Thus, the trial court was well within its authority to modify the sentence pronounced in open court prior to entry of judgment as long as it complied with other pertinent criminal rules.

Bradford next asserts that he should have been allowed to withdraw his negotiated plea and that he was not advised that he could do so, in violation of Ark. R. Crim. P. 25.3(b). Rule 25.3(b) reads:

(b) If a plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that the charge or charges will be reduced, that other charges will be dismissed, or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate whether he will concur in the proposed disposition. If after the judge has indicated his concurrence with a plea agreement and the defendant has entered a plea of guilty or nolo contendere, but before sentencing, the judge decides that the disposition should not include the charge or sentence concessions contemplated by the agreement, he shall so advise the parties and then in open court call upon the defendant to either affirm or withdraw his plea.

Ark. R. Crim. P. 25.3(b) (emphasis added). See also Ark. R. Crim. P. 26.1(b)(v) (reiterating a defendant’s right to withdraw a guilty plea if the trial court does not sentence him in accordance with the plea agreement).

At the first sentencing hearing on February 25, 2002, the trial court concurred with the plea agreement and pronounced sentence in accordance with the terms of that agreement. It is also clear that by virtue of the trial court’s sua sponte order directing Bradford’s appearance at the resentencing hearing, the court intended to change the sentence originally pronounced. Having said that, it is also clear that the trial court did not advise Bradford of his right to either affirm or withdraw his plea, or call upon him in open court to do so at the March 7, 2002 hearing. In fact, the only question posed directly to Bradford during the March 7, 2002 hearing was the following:

The Court: Does the defendant have any questions before the Court pronounces sentence in the case?
Mr. Bradford: No, sir.

Compliance with Rule 25.3(b) is mandatory. We reverse and remand for the trial court to follow the mandates of that rule.

Because we reverse and remand on the foregoing point, it is unnecessary for us to address Bradford’s points relating to due process and the timeliness of entry of the judgment and commitment order. With respect to double jeopardy, however, we must address the argument because a violation of the double-jeopardy clause of the United States Constitution results in a dismissal of the State’s case. See, e.g., State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002). We conclude that double jeopardy does not attach to these facts. The State correctly cites this court to the United States Supreme Court’s analysis in United States v. DiFrancesco, 449 U.S. 117 (1980), which applies. In DiFrancesco, the Court held:

B. The double jeopardy focus, thus, is not on the appeal but on the relief that is requested, and our task is to determine whether a criminal sentence, once pronounced, is to be accorded constitutional finality and conclusiveness similar to that which attaches to a jury’s verdict of acquittal. We conclude that neither the history of sentencing practices, nor the pertinent rulings of this Court, nor even considerations of double jeopardy policy support such an equation.

449 U.S. at 132. Because sentencing is not afforded the constitutional finality of an acquittal, Bradford is not entitled to double-jeopardy protection against the trial court’s judgment and commitment order following resentencing.

Bradford also cites this court to the former-prosecution statute and specifically to section (2), which reads:

A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(2) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the court.

Ark. Code Ann. § 5-1-112(2) (Repl. 1997). Section 5-1-112(2) appears to provide that a guilty plea is effective once it is accepted by the trial court and at that time equates to a judgment of conviction. We have held in this opinion that entry of the judgment and commitment order is what determines the effectiveness of a guilty plea and that a guilty plea may be withdrawn in accordance with our criminal rules under certain circumstances. The accepted guilty plea of February 25, 2002, with the resulting sentence on that date was never memorialized as a judgment and commitment order and entered of record. Hence, it was never an effective judgment of conviction. To the extent § 5-1-112(2) conflicts with our Administrative Order No. 2, we hold that it is superseded by that Order and our caselaw. See Johninson v. State, supra.

Bradford relies on a court of appeals’ case, Reaves v. City of Little Rock, 25 Ark. App. 14, 751 S.W.2d 18 (1988), in his double-jeopardy argument. In Reaves, the court of appeals held that a letter opinion finding the defendant not guilty equated to an acquittal for double-jeopardy purposes. No judgment of acquittal had been entered of record, but the acquittal had been noted on the court’s docket. The Reaves decision predated this court’s opinion in Price v. Price, supra, and Johninson v. State, supra, and for that reason is not controlling.

There is one final point. Apparently, a conversation among counsel and the trial court took place in chambers immediately before the resentencing hearing on March 7, 2002. This conversation was not transcribed, though it appears to have been relevant to the issues on appeal. We emphasize once more that our Administrative Order No. 4 requires that a verbatim record of all proceedings pertaining to any contested matter be made.

Reversed and remanded.

Glaze, Corbin, and Imber, JJ., dissent.

Tom Glaze, Justice,

dissenting. I respectfully dissent. As stated in the majority, there are three exceptions to the general rule that no appeal shall be allowed from a plea of guilty. Those exceptions are: (1) an appeal from a conditional plea of guilty under Ark. R. Crim. P. 24.3(b); (2) an appeal involving testimony and evidence that occurred after the guilty plea but during sentencing hearings before a jury; and (3) an appeal from a postjudgment motion to amend an incorrect or illegal sentence. While the majority correctly lays out the three exceptions to the rule, it errs in concluding that the instant case falls under the second exception. The majority opinion cites the case of Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994), which does not support this conclusion. The Hill court made very clear that the acceptance of the appeal did not compromise the general rule because it did not constitute a review of the plea itself. Instead, the appeal involved nonjurisdictional issues, such as the admission of testimony and evidence authorized by the bifurcation statute. The instant case does not raise evidentiary matters; rather, the crux of this appeal is the trial court’s imposition of consecutive sentences “in violation of a plea agreement.”

The instant case is controlled by State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990). There, the defendant, Sherman, challenged the validity of the sentence that he received as a direct result of his guilty plea. The court stated that if the appeal was from a sentencing procedure which was an integral part of the acceptance of the appellant’s guilty plea, then the appeal must be dismissed; in such a case, the defendant’s remedy is a motion to correct sentence, under Ark. Code Ann. § 16-90-111 (Supp. 2001), or, in the alternative, the defendant may seek relief under Ark. R. Crim. P. 37. Id. at 286-287.

Here, because we are not dealing with an appeal from a bifurcated trial, but instead from the sentencing procedure which was an integral part of the acceptance of Bradford’s plea of guilty, his appeal should be dismissed under the general rule that no appeals are allowed from a plea of guilty. To rule otherwise will compromise Ark. R. App. P. — Crim. 1 (“Except as provided by ARCrP 24.3(b) there shall be no appeal from a plea of guilty or nolo contendere.”) because there shall be a right of appeal from every sentence imposed at a separate sentencing proceeding following a defendant’s entry of a plea of guilty.

Corbin and Imber., JJ., join this dissent.

       Arkansas Rule of Criminal Procedure 24.3(b) permits a “conditional plea of guilty” from 'which a defendant may appeal.

       The Johninson opinion refers to Administrative Order No. 3, where Administrative Order No. 2 was dearly intended.