text:
    NATIONAL BY-PRODUCTS, INC. v. CITY of LITTLE ROCK, by and through the Little Rock Regional Airport Commission
    95-807
    916 S.W.2d 745
    Supreme Court of Arkansas
    Opinion delivered March 11, 1996

      Skokos, Bequette, & Smith, by: Michael G. Smith, for appellant.

      Jerome Green & Associates, for appellee.
   Bradley D. Jesson, Chief Justice.

The appellant, National By-Products, Inc. (“National”), filed a suit for inverse condemnation against the appellee, City of Little Rock, acting through the Little Rock Regional Airport Commission (“Commission”). National owns property near the airport on which it operates an animal by-products rendering plant. In its complaint and amended complaint, National claimed that the Commission’s plans to expand a runway through its property amounted to a “taking” in violation of the Fifth Amendment to the United States Constitution and Ark. Const. art. 2, § 22. National appeals from the trial court’s dismissal of its case for failure to state facts upon which relief could be granted. We affirm.

The facts as set out in National’s complaint and amended complaint are as follows. National operates its plant at 4300 East 9th Street in Little Rock, and also owns an adjacent vacant parcel. Both the plant and the vacant parcel are located between the north end of the airport’s runway and the south bank of the Arkansas River. According to National, its property was identified in a 1985 study as a necessary acquisition for noise mitigation purposes.

In 1991, the Commission acquired substantial property at the north end of Runway 4L-22R as a part of a noise mitigation and runway protection zone. National attached a map to its complaint showing these acquisitions. According to National, its property was the only non-residential improvement in this area. While Federal Aviation Administration (FAA) funds for the project were approved, the grant was not large enough to enable the Commission to acquire National’s property.

The Commission announced its decision to proceed with the acquisition project in August of 1992 and had National’s property appraised. It acquired the residential properties in the area and removed the improvements therefrom. According to National, the effect of these surrounding acquisitions left its property an “island,” as it became the sole property in the immediate vicinity that had not been acquired by the Commission.

According to National, the acquisition of its property remained a high priority for the Commission, as it is practically impossible to extend the runway to the south. The Commission’s pre-application for funds for the acquisition of National’s property remains on file with the FAA. National attached a copy of an official Commission map showing the intended runway extension, which, in addition to mitigating noise, is necessary for reducing current weight restrictions on aircraft, increasing capabilities of non-stop flights, and installing specialized landing and lighting systems.

Between late 1993 and early 1994, the Commission prepared a Capital Improvement Plan for the years 1995 through 1997. The two priority items in the plan were the extension of the runway and the installation of the landing and lighting systems. According to National, the Commission has publicly announced, through the news media, the filing and recording of maps, and the adoption of resolutions, its plans to install the landing and lighting systems in the vicinity of National’s property. As part of this plan, the Commission applied to the FAA for permission to impose a $3.00 per passenger facility charge, the proceeds of which would be used to retire revenue bonds to fund the project. An approved layout plan is on file with the FAA.

According to National, its business is capital intensive and requires frequent maintenance to keep equipment in good working order. National alleges that substantial expenditures, including the purchase and installation of new equipment, would be made at great risk due to the uncertainty as to whether these costs could be recovered in subsequent litigation or by agreement with the Commission.

In 1989, National’s competitors approached National’s suppliers and informed them of newspaper articles about the proposed runway extension. As the suppliers are required by law to dispose of inedible animal by-products promptly, National’s competitors were able to convince a number of National’s customers to change rendering services. According to National, prospective purchasers of National’s business, once informed of the proposed airport expansion, have immediately lost interest in buying the company. Additionally, National has had extreme difficulty in retaining its management and employees.

In sum, National alleges it has suffered material harm to its operations to the extent that it has been substantially deprived of the use and enjoyment of its property. As a result of the Commission’s actions, which have “effectively frozen [its] operation and have depressed land values,” National claims that its property has been rendered unfit for its highest and best commercial use. National further claims that the Commission’s actions have resulted in permanent and substantial interference and deprivation amounting to an actual or constructive taking in violation of the Fifth Amendment to the United States Constitution and Ark. Const, art, 2, § 22. National has asked for the fair market value of its property from the date the taking was effective. In its original complaint, National claimed that this amount is in excess of the $559,600.00 appraisal figure obtained by the Commission.

The Commission filed a motion to dismiss, asserting that National had failed to assert facts constituting actual trespass or a physical taking under Arkansas law, and that National had made no showing of total diminution in the value of its property. National filed a response to the motion, claiming that it need only demonstrate that the Commission acted in a manner that substantially diminished the value of its property. The trial court heard arguments from counsel at a hearing on the motion, but no evidence or witness testimony was presented. At the conclusion of the hearing, the trial court ruled that the adverse impact on the commercial use of National’s property appeared to be caused by its competitors rather than the direct result of the Commission’s actions. In determining that National’s complaint did not state a cause of action, the trial court further observed that the law in Arkansas on inverse condemnation has historically involved some type of invasion or trespass where governmental activities interfere substantially with the quiet enjoyment of the subject property or diminish its commercial use. The trial court subsequently entered a judgment of dismissal pursuant to Ark. R. Civ. P. 12(b)(6), from which National takes this appeal.

When reviewing an order granting a motion to dismiss to determine whether dismissal was proper, we treat the allegations in the pleading as true and view those allegations in a light most favorable to the appellant. Mann v. Orrell, 322 Ark. 701, 912 S.W.2d 1 (1995).

Article 2, section 22 of the Arkansas Constitution provides that “[t]he right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.” We have interpreted this provision to require compensation for a taking when a municipality acts in a manner which substantially diminishes the value of a landowner’s land, and its actions are shown to be intentional. Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990). A conspectus of the law on inverse condemnation is as follows:

As originally conceived and developed, the concept of inverse condemnation was a remedy for physical taking of private property without following eminent domain procedures. “Fault” has nothing to do with eminent domain, and it is not bare trespass or negligence which results in inverse condemnation but something which amounts to a de facto or common law “taking.” J. Sackman & P. Rohan, Nichols on Eminent Domain, 8.1 [4] (Rev. 3d ed. 1985, Supp. 1987). Inverse condemnation is thus a cause of action against a governmental defendant to recover the value of property which has been taken in fact by a governmental entity although not through eminent domain procedures.

301 Ark. 226 at 230. In Robinson, we stated that a taking occurs when a condemnor acts in a manner which substantially diminishes the value of a landowner’s land, and that a continuing trespass or nuisance could ripen into inverse condemnation. Later, in City of Fayetteville v. Stanberry, 305 Ark. 210, 807 S.W.2d 26 (1991), while we did not provide a definitive statement of what constitutes a taking, we emphasized that a taking does not require permanency nor an irrevocable injury. 305 Ark. 210 at 214-215; citing First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987).

At least one commentator has characterized the issue presented in this case as one involving “condemnation blight,” which is defined as “the debilitating effect upon value of a threatened, imminent or potential condemnation.” 4 J. Sackman, Nichols on Eminent Domain, § 12B.17[6] (Rev. 3d ed. 1995). The following discussion is illustrative:

The question has arisen with more and more frequency, usually in the format of an action in inverse condemnation: Absent a “taking” in the legal and traditional sense, does “condemnation blight” give rise to a cause of action for the recovery of the diminution in property value, lost rental income and increased and unrequited costs of maintenance of protection of property? Several jurisdictions require a physical taking or legal restraint as a sine qua non to a sustainable cause of action. Other jurisdictions, recognizing the economic impact, have equated condemnation blight with a de facto taking. However, it has been held that damages for loss of business and depreciation of property resulting from the condemnation of adjacent land are noncompensable where there is no interference with possession, use, or enjoyment of such land.

Id. at 12B-256-258 [footnotes omitted].

In Danforth v. United States, 308 U.S. 271 (1939), a landowner contended that the “taking” of his property had occurred prior to the institution of condemnation proceedings, by reason of the enactment of the Flood Control Act. He claimed that the passage of the Act had diminished the value of his property because the plan embodied in the Act required condemnation of a flowage easement across his property. The United States Supreme Court held that, in the context of condemnation proceedings, a taking does not occur until compensation is determined and paid:

A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a ‘taking’ in the constitutional sense.

482 U.S. 271 at 285. See also Agins v. City of Tiburon, 447 U.S. 255 (1980)(a municipality’s good-faith planning activities, which did not result in successful prosecution of an eminent domain claim, did not so burden landowners’ enjoyment of their property as to constitute a taking).

We followed the rationale of the Danforth decision in Hood v. Chadick, County Judge, 272 Ark. 444, 615 S.W.2d 357 (1981); see also 4 J. Sachman, Nichols on Eminent Domain § 12B.17[6] (Rev. 3d ed. 1995). In that case, Hood appealed from the trial court’s dismissal of his case against Jefferson County for damages he alleged were caused by the county’s threat to take his property. Hood owned a building registered as a historical landmark located across the street from the Jefferson County Courthouse. After the courthouse burned in 1976, a commission was appointed to discuss plans for rebuilding. The commission’s members considered plans to take Hood’s property for parking and landscaping. The original plan, approved by the City Council in 1978, was withdrawn from a November 1978 election. A subsequent plan was developed and referred to the people in a July 1979 election. The plan was defeated. Subsequently, the county dismissed its condemnation suit against Hood, which had been filed in response to Hood’s suit to enjoin the county judge from taking his property and for damages for loss of rentals. In affirming the trial court’s dismissal of Hood’s case, we observed that the county never took possession or even entered upon Hood’s property and concluded that “[n]o damages are allowable for a mere ‘threat to condemn.’ ” Id. at 447; see also Watson v. Harris, 214 Ark. 349, 216 S.W.2d 784 (1949); Southwestern Water Co. v. Merritt, 224 Ark. 499, 275 S.W.2d 18 (1955)(holding that the actual taking or damage of lands for public use is what must be compensated under the state and federal constitutions, not a plan to take or damage the land).

Our holding in Hood is consistent with the law in several jurisdictions which adhere to the general rule that mere plotting or planning in anticipation of an improvement does not constitute a taking or damaging of the property affected where the government has not imposed a restraint on the use of the property. See e.g., Westgate Ltd. v. State, 843 S.W.2d 448 (Tex. 1992) and Lone Star Ind. v. Sec. of Kan. Dept. of Transp., 671 P.2d 511 (Kan. 1983) (citing with approval Hood v. Chadick, supra); see also J.R. Kemper, Annotation, Plotting or Planning in Anticipation of Improvement as Taking or Damaging of Property Affected, 37 A.L.R.3d 127 (1971 and Supp. 1995).

As outlined in Westgate, Ltd. v. State, supra, public policy considerations support our continued adherence to the general rule:

Construction of public-works projects would be severely impeded if the government could incur inverse condemnation liability merely by announcing plans to condemn property in the future. Such a rule would encourage the government to maintain the secrecy of proposed projects as long as possible, hindering public debate and increasing waste and inefficiency. After announcing a project, the government would be under pressure to acquire the needed property as quickly as possible to avoid or minimize liability. This likewise would limit public input, and forestall any meaningful review of the project’s environmental consequences. The government would also be reluctant to publicly suggest alternative locations, for fear that it might incur inverse condemnation liability to multiple landowners arising out of a single proposed project. Failing to consider available alternatives is not only inefficient, but is at odds with proper environmental review.

843 S.W.2d 448 at 453 (citations omitted). As we recognized in Hood, these policy reasons might not be applicable where a condemning authority is accused of intentionally injuring a landowner. However, as conceded by counsel for National during oral argument, the Commission, through its actions, did not manifest such an intent to cause injury.

In this case, the property in question continued to be used for its traditional purpose as a rendering plant. Neither the City nor the Commission has placed any direct restraint on that use. Likewise, there is no allegation that the City or the Commission acted in bad faith in its dealings with the landowner. It is clear that, on the facts before us, any damages sustained by National were insufficient to support an action for inverse condemnation. When viewing the allegations in the amended complaint in a light most favorable to National, it cannot be said that the Commission’s actions constituted a taking of National’s property.

Affirmed.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Alvis A. JORDAN v. STATE of Arkansas
    CR 95-942
    917 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered March 11, 1996

      Lee R. Watson, for appellant.

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

Appellant Alvis Jordan and co-defendant Cedric Harris were charged with capital murder for shooting and killing Broderick Shavis and with attempted capital murder for shooting and injuring Daniel Williams. Appellant and Harris were tried separately. Appellant was found guilty of second-degree murder for killing Broderick Shavis and guilty of attempted first-degree murder for shooting Daniel Williams. There was substantial evidence that appellant was guilty of both crimes. We affirm both judgments of conviction.

In his opening brief, appellant contends that the trial court erred in denying his motion for a directed verdict on the charge of attempted capital murder of Daniel Williams. He argues the required proof of his culpable mental state for attempted capital murder was lacking. We need not address the point in any detail. As appellee’s brief points out, the ruling could not have been prejudicial to appellant since he was not convicted of attempted capital murder, but rather was convicted only of a lesser-included offense, attempted first-degree murder. See Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993). In his reply brief, appellant admits that he was not convicted of attempted capital murder and attempts to change his argument to one alleging error for failure to grant a directed verdict on the charge of first-degree murder. The attempt to change arguments is ineffective. We have long held that an argument cannot be raised for the first time in the reply brief. Partin v. Bar, 320 Ark. 37, 894 S.W.2d 906 (1995). As far back as 1919, we wrote: “If counsel should omit to argue any assignment of error in his original brief, such assignment must be treated as waived and abandoned by him unless permission to amend his brief is asked and granted by the court for good cause before the case is submitted.” Commonwealth Pub. Serv. Co. v. Lindsay, 139 Ark. 283, 293, 214 S.W. 9, 13 (1919).

As a sub-point appellant argues that the conviction for attempted first-degree murder of Daniel Williams should be reversed because it is inconsistent with the conviction of only second-degree murder for killing Broderick Shavis. While both Shavis and Williams were shot during the one episode, the argument is without merit. A jury may convict on some counts but not on others, and may convict in different degrees on some counts, because of compassion or compromise, and not solely because there was insufficient evidence of guilt. “Indeed, if the rule were otherwise, the State would be entitled to have the jury warned that an acquittal on some counts might undermine a guilty verdict on others — almost the opposite of the standard instructions, which is obviously beneficial to criminal defendants.” McVay v. State, 312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993) (quoting United States v. Greene, 497 F.2d 1968 (7th Cir. 1974)). The law is clear in that “a defendant may not attack his conviction on one count because it is inconsistent with an acquittal on another count. Res judicata concepts are not applicable to inconsistent verdicts; the jury is free to exercise its historic power of lenity if it believes that a conviction on one count would provide sufficient punishment.” Id. (quoting United States v. Romano, 879 F.2d 1056 (2d Cir. 1989)).

Appellant next contends that the trial court erred in denying his motion for a directed verdict for the second-degree murder of Broderick Shavis. He moved for a directed verdict on the capital murder charge for killing Broderick Shavis at the close of the State’s case on the ground that there was “insufficient evidence from which reasonable people could agree” that there was, among other things, “premeditation or deliberation.” The trial court denied the motion. Appellant then put on his case. At the close of his case, appellant moved for a directed verdict on capital murder and attempted capital murder and all lesser-included offenses on the ground that he had no intent to cause the death of either victim. The trial court denied the motion.

The argument is procedurally barred. Appellant’s motion at the close of the State’s case addressed only capital murder. Counsel stated that he “moved for a directed verdict on the charge of capital murder” and “that there was no intent to commit the death of' the individuals by either party when they went down there. There was no premeditation or deliberation.” The motion did not address second-degree murder either by name or by the culpability required for the crime. (Premeditation and deliberation are not required for second-degree murder. Instead, it requires proof that the actor engaged in conduct with the conscious object to produce death. See Ark. Code Ann. § 5-10-103 (a)(1) (Repl. 1993) and Original Commentary.) We have held that a defendant is required to address the lesser-included offenses in his motion for a directed verdict to preserve a challenge to the sufficiency of the evidence necessary to support a conviction for a lesser-included offense. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). Appellant’s failure to question the sufficiency of the evidence for lesser-included offenses, either by name or by apprising the trial court of the elements of the lesser-included offenses, at the close of the State’s case constituted a waiver of the argument.

Appellant’s third point of appeal is also procedurally barred. Before trial, appellant filed a motion to quash the jury panel. He did not bring the motion to the attention of the trial court, and he did not obtain a ruling on the motion. In fact, to the contrary, the trial court commenced the trial by asking both the State and appellant, “Is this a good jury?” and both responded affirmatively. In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992).

Appellant’s next point of appeal concerns the State’s closing argument. The evidence tended to show that Broderick Shavis was struck by both a .25 caliber bullet and a .38 caliber bullet. Appellant contends the trial court erred in allowing the prosecutor to draw an improper inference from the evidence by stating “you can’t put a five-sixteenths bullet through that one-eighth, I mean one eighth hole.” He additionally argues that the prosecutor was erroneously allowed to .argue that victim Daniel Williams’ beeper could have been used in his job with a temporary agency. Appellant objected to the statements, but did not seek any relief other than a ruling on the objection.

The case of Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993) is directly in point. There, the defendant objected to arguments made by the prosecutor, but did not ask the trial court for any relief other than a ruling on his objection. We noted that the trial court gave a limiting instruction that counsel’s remarks were not evidence and should be disregarded if not supported by evidence. The trial court explained to the jurors that attorneys are given leeway in closing arguments and can make every argument that is plausible from the evidence. We said, “The trial court has a wide latitude of discretion in controlling the arguments of counsel, and its rulings in this regard are not overturned in the absence of clear abuse.” Id. at 371, 863 S.W.2d at 281 (citation omitted).

In the present case, appellant objected, but, just as in Littlepage v. State, did not ask for a limiting instruction or a mistrial. After the prosecutor’s argument about the size of the wounds the trial court gave a limiting instruction that closing arguments by counsel were not to be considered as evidence. The trial court did not give another limiting instruction after the argument about the beeper, but rather instructed the prosecutor to proceed, and the prosecutor did so without further mention of the beeper. Appellant did not ask any relief that was denied by the trial court, and there was no abuse of discretion in the rulings by the trial court.

Appellant next argues that the trial court erred in allowing the State to present rebuttal evidence during the sentencing phase of the trial. We addressed this issue in Caldwell v. State, 322 Ark. 543, 910 S.W.2d 667 (1995), and held that a trial court has discretion to allow rebuttal evidence during the sentencing phase of the trial.

Appellant’s final point of appeal is that the trial court erred in allowing Kim Walker to identify him in court. The argument is devoid of merit. The day after the crimes, Kim Walker accurately described appellant and his clothing, described the co-defendant, and accurately picked appellant out of a photo lineup. At trial she testified that she observed appellant at the crime scene at close range under a street light and was certain of his identity, and identified him as the person who shot and killed Shavis. David Oliver, a police officer, testified without objection that, the day after the crime, Kim Walker identified appellant from a photo line-up as the one who shot Shavis. Wayne Sherrer testified that he has known appellant all of his life and that he saw appellant shoot Shavis. He also identified appellant in the courtroom. Cedric Harris, the co-defendant, testified that he was at the scene with appellant and appellant shot Shavis. Appellant took the stand and testified that he was at the crime scene and fired a pistol when Shavis was killed. He contended that he merely shot into the air while Harris shot and killed Shavis.

Identification simply was not an issue. Even if in some manner the trial court had erred in allowing Walker’s in-court identification of appellant, it would be harmless in light of the other identification testimony, especially since appellant testified in court that he was at the crime scene with a pistol.

Affirmed.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    Justin Wade GREEN v. STATE of Arkansas
    95-1005
    916 S.W.2d 756
    Supreme Court of Arkansas
    Opinion delivered March 11, 1996
    [Petition for Rehearing denied April 22, 1996.]

      Bridewell & Bridewell, by: Laurie A. Bridewell and Robert G. Bridewell, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Justin Wade Green turned 14 on August 4, 1994. On September 15, 1994, he telephoned the Monticello Police Department from his home. He was crying and pleading for help for his close friend, 13-year-old Jacob Stanley, who had been shot, as it turned out, fatally. Justin was charged with manslaughter in Drew Circuit Court. The portion of the manslaughter law with which he was charged reads, “A person commits manslaughter if: He recklessly causes the death of another person.” Ark. Code Ann. § 5-10-104(a)(3) (Repl. 1993). He moved to transfer the case to juvenile court. The motion was denied on the grounds that the offense charged is serious and a firearm was involved. We reverse and remand for transfer to the juvenile court.

Drew County Deputy Sheriff Cox, who participated in the police investigation of the incident, testified about the transcript of Justin’s telephone call to the police and about the immediately ensuing investigation. Through somewhat garbled questions and answers with the operator, and later in a clearer manner to investigators, Justin related that he tried to get a television remote control device away from Jacob. Justin had his father’s .357 magnum pistol. Jacob said, “What are you going to do, stupid, shoot me?” Justin replied, “No.” Jacob threw the remote control device at Justin who dropped down to avoid being struck. The gun went off, wounding Jacob in the chest.

Although Justin’s explanation, both in his initial call and later, was that the shooting was completely accidental, Deputy Cox related some circumstances raising doubts. The bullet entered Jacob’s body in a downward path, making it seem unlikely, perhaps, that Justin had fallen and Jacob was standing upright when the shot occurred. Jacob was found lying on his back rather than on his side as Justin had reported his fallen position. The remote control device was near Jacob’s body rather than near the place Justin said he had been when he went down to avoid being struck. Justin explained the latter two circumstances by saying he had kicked the remote control device across the room in anger at himself and had rolled Jacob over in an effort to help him. Although the path of the bullet in Jacob’s body remained unexplained, there was no evidence as to the position of Jacob’s body when the shot entered it.

There was evidence that Justin is fascinated with guns. He had been told not to play with his father’s pistol, but friends testified that he often got it out when they were with him and his parents were not at home. He and the friends handled the gun. There was testimony that he once pointed it at his brother and said he was going to kill him but there was other testimony from young friends that they had not seen Justin point the gun at anyone when he was showing it to them.

Deputy Cox testified he had checked for any police record of misconduct on the part of Justin and found nothing to indicate he had ever had a problem with the law in Little Rock or North Little Rock where he had previously lived or in his current home town, Monticello.

Justin’s mother testified that he had never been in trouble with the law. She said Jacob had been Justin’s best friend and they never quarreled or fought. Justin had maintained a 3.4 grade average in school prior to the incident. He was inducted into the Beta Club in honor of his good scholarship and citizenship. During the time he remained in school after the incident, his grades dropped to 2.4. He was suspended from school due to the felony charge. In his home schooling with which his mother helped him he achieved better than average scores on standardized tests. His mother testified that Justin suffered from nightmares after the shooting and that she and her husband and Justin had all received prescription medicines and psychological counselling as the result of the incident.

The psychological counselor Justin had visited some 50 times since the incident testified that the best course for Justin was to reintegrate him in school. He testified Justin had no problem requiring rehabilitation, such as a mental disorder or drug addiction, but that he continued to have crying spells and mental ups and downs resulting from the death of his friend. It was also related that Justin had struck another young man who taunted him about the incident and that he was the sort who did not back away from aggressive behavior toward him.

At the conclusion of the hearing on the motion to transfer, the Trial Court stated:

I have listened to the testimony and among other things, as it was pointed out, that Justin is a violent person and there’s two major factors I have given substantial consideration to. One is the seriousness of the offense and the other is a death caused by a firearm. These are the two primary factors that I’ve considered in deciding that this matter should be heard by the Circuit Court as opposed to juvenile court, although that does not mitigate the evidence of the type of person that Justin Green is. But under these circumstances the Court finds the Motion to Transfer should be denied.

The operative part of the Court’s order was as follows: “That due to the serious nature of the crime charged & the use of a firearm in the commission of the offense, the defendant’s motions should be and are denied.” The order, as prepared presumably by the prosecutor, included the words “and the employment of violence.” Those words were crossed out with the deletion initialed by Justin’s counsel apparently prior to the signing of the order by the Trial Court.

1. The statutory transfer factors

The General Assembly has established factors to be considered in deciding whether a charge against a juvenile should be transferred to the juvenile division of a chancery court. Although commission of a felony while armed with a firearm is a basis of concurrent jurisdiction of a circuit court over a juvenile, Ark. Code Ann. § 9-27-318(b)(2)(M) (Supp. 1995), it is not one of the factors to be considered in making the transfer decision. Arkansas Code Ann. § 9-27-318(e) (Supp. 1995) provides the factors to be considered as follows:

In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:
(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;
(2) Whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and
(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

In making a transfer decision, a circuit court is not required to give equal weight to each of the statutory factors. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995); Williams v. State, 313 Ark. 451, 856 S.W.2d 4 (1993); Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992). The seriousness of an offense, when coupled with the employment of violence, is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult. Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993); Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992); Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991); Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh’g denied 304 Ark. 402-A, 805 S.W.2d 80 (1991).

From the evidence before the Trial Court, it is apparent that consideration of factors (2) and (3), which were not mentioned by the Trial Court in comments from the bench or in the order, would favor transfer in this case. The focus thus must be upon the first factor. No doubt the offense charged is serious. Manslaughter is a class C felony. Ark. Code Ann. § 5-10-104(c) (Repl. 1993). If Justin were convicted he would be sentenced to imprisonment for not less than three nor more than ten years. Ark. Code Ann. § 5-4-401(a)(4) (Repl. 1993).

The question then is whether factor (1) may form the basis of refusal to transfer absent a finding that “violence was employed.”

2. “Whether violence was employed”

The question is not whether violence occurred in the incident under consideration but whether the decision not to transfer the case can stand absent a finding that “violence was employed” by Justin Green. Jacob Stanley obviously died a most violent death. Although an information alone may be sufficient evidence of the serious and violent nature of the crime alleged to support an order denying the motion to transfer, Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996); Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877 (1995); Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); Vickers v. State, supra; Walker v. State, supra, the information in this case does not allege the employment of violence.

Justin Green is charged with having “recklessly” caused Jacob Stanley’s death. “Recklessly” is defined or described by Ark. Code Ann. § 5-2-202(3) (Repl. 1993) as follows:

A person acts recklessly with respect to attendant circumstances or a result of his conduct when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

“To employ” means “to make use of.” Shorter Oxford English Dictionary, p. 810 (1993). The State does not intend to prove that “violence was employed” by Justin toward Jacob Stanley, and the order of the Trial Court contains no such finding.

Seriousness alone is not a sufficient basis to refuse the transfer. See Holmes v. State, 322 Ark. 574, 911 S.W.2d 256 (1995). Thus, evidence in support of applying factor (1) to justify refusal to transfer is incomplete, and factors (2) and (3) weigh in favor of transfer. True, as mentioned above, the Trial Court need not have given equal weight to each of the statutory factors for deciding whether to transfer, but in this instance application of them, no matter how they are weighed, points decidedly toward juvenile court.

Reversed and remanded for orders consistent with this opinion.

Jesson, C.J., Glaze, and Corbin, JJ., dissent.

Tom Glaze, Justice,

dissenting. If “violence was not employed” in the commission of this alleged crime, I am mystified how Jacob Stanley died. The undisputed evidence at the pretrial transfer hearing was that Jacob’s death resulted from a gunshot wound caused by a .357 pistol which was then in Justin Green’s possession. After hearing the evidence, the trial judge concluded that, “due to the serious nature of the crime charged (manslaughter) and the use of a firearm in the commission of the offense,” he should deny the request to transfer the matter to juvenile court. Because this court repeatedly has held that the seriousness of an offense, when coupled with the employment of violence, is a sufficient basis for denying a motion to transfer and trying a juvenile as an adult, we should affirm the trial court’s ruling in this case. See Sims v. State, 320 Ark. 528, 900 S.W.2d 508 (1995); Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993).

Other evidence presented below is troublesome and runs counter to the majority court’s decision to overturn the trial judge’s decision. Testimony was introduced that, prior to his having shot Jacob, Justin had on a previous occasion pointed a gun and threatened to shoot and kill his own brother. Evidence was also admitted, showing Justin had on numerous occasions displayed guns to friends, and his parents tried to hide the guns from him. One friend testified that Justin had taken all but one bullet from a gun and proceeded to pull the trigger of the gun, while aiming at a wall. The friend said, “I freaked out.”

Finally, Deputy Sheriff Tommy Cox testified he had concerns over Justin’s description of how the shooting occurred. Justin had stated the pistol discharged accidently after Jacob said, “What are you going to do stupid, shoot me?” Justin related he said, “No,” and started to put the gun up. Then, Justin continued, “Jacob threw a remote [control], and I fell to the floor to keep the remote from hitting me — that’s when the gun went off.” Justin claimed Jacob fell on his right side, and ¡had previously been standing. The on-scene investigation, however, found Jacob on his back and the remote lying next to his body. The autopsy revealed the bullet was in a downward trajectory in Jacob’s body, which seemed inconsistent with Justin’s story of his falling to the floor and Jacob standing.

From all the evidence above, it seems apparent that this court is substituting its judgment in place of the trial judge’s. Clearly, the state provided sufficient evidence from which it could be concluded that Justin consciously and repeatedly risked other peoples’ lives by wielding loaded guns in their presence. Unfortunately, Jacob was the one who was present when, on this occasion, Justin’s reckless handling of a gun caused it to discharge and kill Jacob.

This is a sad case, but the trial judge made a difficult decision and I cannot say he was clearly erroneous.

Jesson, C.J., and Corbin, J., join this dissent.


author: Tom Glaze, Justice. David Newbern, Justice,

text:
    John STACKS v. Randy JONES and Rita Jones
    95-211
    916 S.W.2d 120
    Supreme Court of Arkansas
    Opinion delivered March 11, 1996

      Timothy O. Dudley, for appellant.

      Donna J. Wolfe, for appellees.
   Tom Glaze, Justice.

On July 20, 1990, the appellees, Randy and Rita Jones, leased a feed mill business from Mountaire Feeds, Inc., for five years. The lease contained an option to renew for an additional five years at the end of the primary term. During the primary term, appellant John Stacks entered into negotiations to purchase the mill from Mountaire, and those negotiations culminated in a sale on August 14, 1992. At that time, Mountaire assigned the Joneses’ lease to Stacks. Significantly, a wind storm had damaged the fertilizer and seed storage bins on the leased property only four days prior to Stacks’s purchase of the property. By letter dated October 30, 1992, Stacks told the Joneses he would not repair the storm damage and he was terminating that portion of the lease involving the fertilizer business. Stacks further notified the Joneses that they were in noncompliance with certain lease provisions. Stacks, about six weeks later, demanded the Joneses vacate the property.

On March 11, 1993, the Joneses brought this lawsuit, alleging Stacks had breached their lease agreement, and seeking damages arising from that breach. On September 29, 1994, this matter was tried to a jury which returned a judgment in favor of the Joneses in the sum of $137,797.00. The trial court entered its judgment on October 12, 1994, and Stacks’s new counsel entered his appearance and filed a timely motion for new trial on October 24, 1994. That motion alleged juror misconduct. The record reflects no ruling on Stacks’s motion, but it shows he filed a timely appeal on December 9, 1994.

In his appeal, Stacks first argues there is no substantial evidence to support the jury’s award of damages. He claims damages are excessive as a matter of law and fact. However, Stacks simply failed to preserve his arguments below. For example, he now cites the case of Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990), in support of his contention that the jury erred in awarding the Joneses damages covering future losses resulting from the five-year lease renewal period. Stacks argues the Burnette decision, as a matter of law, bars the Joneses from recovering damages extending beyond the primary term of the leasehold interest. While Stacks’s argument might have some merit, the Joneses point out Stacks never mentioned Burnette below, nor did he object to the evidence the Joneses presented on this future-loss issue. In addition, Stacks also failed to tender an instruction on the issue.

Although Stacks concedes the Burnette issue was never raised below, he claims that, as a matter of fact and under the evidence, the future losses resulting from the renewal option had been miscalculated and awarded by the jury. As a consequence, he claims he duly preserved the excessive-damages issue when he moved for a directed verdict at the end of the Joneses’ case and after all the evidence had been submitted. We must reject Stacks’s argument on this point because his directed verdict motion failed to specify excessive damages as a ground. Under Ark. R. Civ. P. 50(a), a motion for directed verdict must state the movant’s specific grounds. The purpose of this requirement is to assure the specific ground for a directed verdict is brought to the trial court’s attention. See Standridge v. City of Hot Springs, 271 Ark. 754, 610 S.W.2d 574 (1981).

Stacks also cites Ark. R. Civ. P. 59 in an attempt to salvage his appeal, and argues that rule provides that an error in the assessment of the amount of recovery, whether too large or too small, is a ground for granting a new trial. He further asserts provision (f) of Rule 59 provides that it was unnecessary for him to move for a new trial in order to preserve error concerning the damages issue. In other words, Stacks suggests that any of the Rule 59(a) grounds for a new trial (like excessive damages) can be urged on appeal without ever having brought those grounds to the attention of the trial court.

We first make the observation that, if we accepted Stacks’s interpretation of Rule 59(f), we would be adopting a plain error rule — a rule this court has steadfastly rejected. See Lynch v. Blagg, 312 Ark. 80, 847 S.W.2d 32 (1993). Second, while Stacks complains that it was impossible for him to have complained about excessive damages until after the jury returned its verdict, he ignores the fact that he failed to object to any of the Joneses’ evidence bearing on damages that he now claims on appeal are erroneous as a matter of law. For example, he allowed, without objection, the Joneses’ economic expert to testify thoroughly as to the future losses he now claims violate the holding in Burnette. Likewise, he failed to object to the Joneses’ testimony on lost profits, but instead seeks to question that evidence for the first time in this appeal. And finally, we note Stacks never offered any jury instructions bearing on these damage issues, or any setoff matters that he now argues he is legally due.

Clearly, under Rule 59(f), if a party has already properly preserved his or her error concerning any of the grounds listed in Rule 59(a), that party is not required to make a motion for new trial in order to argue those grounds on appeal. Cf. Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994). Nonetheless, because our rules do not provide for plain error, any error argued on appeal must have first been directed to the trial court’s attention in some appropriate manner, so that court had an opportunity to address the issue. Our court continues to adhere to the well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. Lynch, 312 Ark. at 82, 847 S.W.2d at 33.

In his second point for reversal, Stacks contends the trial court erred in refusing to give an instruction regarding the Joneses’ duty to mitigate damages. The trial court refused, stating no evidence existed to support such an instruction.

Stacks proffered AMI 2229 which is the instruction on the mitigation of damages to real and personal property. The note on use to AMI 2229 explains the instruction should be given only when there is evidence that a party claiming property damage has failed to mitigate damages. This court in Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984), stated that AMI 2229 deals with physical damages to real or personal property covered by AMI 2222 through 2228. Here, the Joneses were seeking lost profits, not physical damages to property. Accordingly, the trial court was correct in refusing Stacks’s proffer of AMI 2229.

For the reasons hereinabove, we affirm.

Newbern, J., concurs.

David Newbern, Justice,

concurring. Arkansas Rules of Civil Procedure 59(f) provides: “A motion for a new trial shall not be necessary to preserve for appeal an error which could be the basis for granting a new trial.” That provision was added to the rule in 1984 to restore to Arkansas practice the provision previously found in superseded Ark. Stat. Ann. § 27-2127.5 (Repl. 1962). Prior to 1984 it was not to be found in the Rules, which became effective in 1979.

In Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994), the appellants argued that a judgment which resulted in no damages to them as plaintiffs in an automobile negligence case should be overturned because the verdict of the jury was against the preponderance of the evidence. Rule 59(a)(6) provides that a new trial may be granted because “the verdict or decision is clearly contrary to the preponderance of the evidence.” No motion for a new trial had been made. We wrote:

Mr. and Mrs. Hall’s sole point on appeal is that the jury verdict was against the “great weight and preponderance of the evidence.” The Halls did not move for a new trial and this is not an appeal from the denial of a motion for a new trial. See ARCP Rule 59(a)(6). It is not necessary to move for a new trial to preserve for appeal any error which could be the basis for granting a new trial. ARCP Rule 59(f). Rule 59 specifically states a motion for new trial may be granted for eight reasons, one of which is where the verdict is clearly contrary to the preponderance of the evidence. [Emphasis supplied.]

The majority opinion suggests that Rule 59(f) only obviates the need to move for a new trial to preserve an error which could be the basis of one of the eight grounds and that an error constituting one of the eight grounds must have been preserved by objection in some other context in order to be considered on appeal. If that is the case, Rule 59(f) has no utility or meaning. We posed no such requirement in the Hall case or in cases decided under the predecessor statute. In Southern National Ins. Co. v. Williams, 224 Ark. 938, 277 S.W.2d 487 (1955), it was argued that the appellant could not question excessiveness of damages on appeal absent having challenged the award in the Trial Court. We wrote:

As a preliminary matter it is contended that the appellant is not entitled to question the amount of the verdict, for the reason that the liberality of the award was not challenged in the trial court. This argument would formerly have been meritorious. By the Civil Code excessiveness of the damages was a ground for a new trial. Ark. Stats., § 27-1901, and the error was waived if not assigned in the motion for a new trial. St. L., I.M. & S. R’y v. Branch, 45 Ark. 524. But Act 555 of 1953 provides that no motion for a new trial and no assignment of errors shall be necessary. Ark. Stats., § 27-2127.5. Thus the old rule has apparently been abrogated.

Similar language and a similar holding occurred in Lake v. Lake, 262 Ark. 852, 562 S.W.2d 68 (1978).

Despite the fairly longstanding history of this seeming exception to the “plain error rule” in this State, there is no good reason not to require that the trial court be apprised by motion of a ground for a new trial as a prerequisite to an appeal seeking a new trial. While I cannot interpret Rule 59(f) as strictly as the majority opinion does, I would interpret it in such a way as to preclude it from becoming a mask for objections which could have been, but were not, made at the trial.

In this case, the Stackses argue entitlement to a new trial due to an excessive award of damages. While that seems to fit the ground stated in Rule 59(a)(4) or (5), the supporting argument is that irrelevant evidence was admitted to prove damages which should not have been recoverable as a matter of law. We should not review that evidentiary issue under the guise of Rule 59(a)(4) or (5).

Subsection (f) should be excised from Rule 59. Until that occurs we, and thereafter the trial courts, should limit the granting of relief under Rule 59 to instances in which the new trial motion or argument on appeal is not a cover for alleged errors which should have been, but were not, called to the trial court’s attention in other ways. To that extent I concur with the majority opinion, and I fully concur in the result it reaches.

       The ten-day deadline for filing Stacks’s new trial motion fell on Saturday, October 22, 1994, which extended the time to the following Monday, October 24, 1994. The motion was deemed denied thirty days later, making his notice of appeal filed on December 9, 1994, timely. See Ark. R. Civ. P. 59(b) and Ark. R. App. P. 4(c).

       Included in this argument is Stacks’s claim that the Joneses were asking double recovery since they wanted both lost profits plus debts incurred in the feed mill’s operation.

       Although the Joneses emphasize Stacks has failed to preserve his arguments on appeal, we note they also reiterate throughout their argument that they offered substantial proof, including expert testimony, which established the damages awarded by the jury. We find it unnecessary to discuss the evidence in detail, since we agree Stacks failed to raise these damage issues below.

         Stacks argues on appeal that the jury should have deducted certain amounts representing the Joneses’ “substantial current earnings,” as well as fertilizer tonnage amounts provided in the lease.


author: Donald L. Corbin, Justice. Tom Glaze, Justice,

text:
    Courtney Carnell GUY v. STATE of Arkansas
    95-1148
    916 S.W.2d 760
    Supreme Court of Arkansas
    Opinion delivered March 11, 1996

      Daniel D. Becker and Michael E. Harmon, for appellant.

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

Appellant, Courtney Carnell Guy, appeals the order of the Garland County Circuit Court denying his motion to transfer his case to juvenile court. This interlocutory appeal is authorized by statute, Ark. Code Ann. § 9-27-318(h) (Supp. 1995). Jurisdiction is therefore properly in this court. Ark. Sup. Ct. R. 1-2(a)(12). We find no error and affirm the denial of the motion to transfer.

Consistent with the discretion given in section 9-27-318(b)(1), appellant was charged by information in circuit court, along with two others, Jerry Burkes and Tarrel Macon, alleging that on June 8, 1995, they committed two counts of terroristic act in violation of Ark. Code Ann. § 5-13-310 (Repl. 1993) and one count of aggravated assault in violation of Ark. Code Ann. § 5-13-204 (Repl. 1993). Appellant was born September 28, 1978, and was therefore aged sixteen years at the time the crimes were alleged to have been committed. We recently affirmed the denial of Macon’s motion to transfer. Macon v. State, 323 Ark. 498, 915 S.W.2d 273 (1996). An affidavit of probable cause indicated that a total of six shots were fired with a weapon at two residences and one person outside one of the residences near a vehicle. The affidavit indicated that one bullet struck the driver’s door of the vehicle and another bullet entered the other residence, struck a metal object, and landed in the shirt collar of the resident. According to the affidavit, four spent .380-caliber casings were found in the street near the residences.

Appellant moved to transfer his case to juvenile court, and the circuit court held a hearing on the motion. Appellant presented no evidence or witnesses in support of his motion. The state called a single witness, Sharon Smith, a juvenile court intake officer who was familiar with appellant.

Smith testified that appellant had two prior adjudications in the juvenile system. In February 1992, appellant was charged with theft of property valued at less than $200.00; he was sentenced to a suspended term of ten days in jail, placed on probation, assessed costs, and ordered to twenty-five hours of community service. Appellant was discharged from that probation in September 1992. In February 1995, appellant was charged with criminal trespass; he was again given probation, assessed costs, and ordered to twenty-five hours community service. Smith stated that, according to her files, appellant had not yet completed the community service requirement.

Smith also testified, based on her experience, as to the possible punishments applicable to appellant’s current case. According to Smith, jail was not a viable option because Garland County did not have a juvenile detention facility. Smith stated that, if appellant were transferred to a juvenile detention facility in another county, the maximum time appellant would serve would be ninety days. Smith also mentioned the training school, but stated appellant would only be there for a short time also. The only long-term program of which Smith was aware was the serious offender program; she could not guarantee appellant would be accepted in that program if adjudicated delinquent on these charges, although she could recommend that program. Finally, Smith testified that, while appellant could remain under a juvenile court’s jurisdiction until aged twenty-one years, he could not be held in a juvenile facility past his eighteenth birthday on September 26, 1996.

On cross-examination, Smith opined that appellant’s previous adjudications were not for serious crimes. She also stated that, in addition to jail, the juvenile system had other options for appellant that had not yet been offered to him.

After the hearing, the trial court took the motion under advisement and later entered an order denying the motion. In deciding whether to transfer a case to juvenile court, the factors to be considered by the circuit court are the seriousness of the alleged offense and whether violence was involved, whether the alleged offense is part of a pattern of adjudicated offenses, and the prior history, character traits, mental maturity, and any other factors that reflect upon the juvenile’s prospects for rehabilitation. McGaughy v. State, 321 Ark. 537, 906 S.W.2d 671 (1995) (citing Myers v. State, 317 Ark. 70, 876 S.W.2d 246 (1994) and section 9-27-318(e)). Appellant, as the party seeking the transfer, has the burden of proving the transfer is warranted under section 9-27-318(e). Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994). The circuit court is not required to give equal weight to each factor, nor is proof required to be presented with regard to each factor. McGaughy, 321 Ark. 537, 906 S.W.2d 671. However, if the circuit court decides to retain jurisdiction of the juvenile’s case, that decision must be supported by clear and convincing evidence. Section 9-27-318(f); Sebastian, 318 Ark. 494, 885 S.W.2d 882. Clear and convincing evidence is evidence of a degree that produces in the trier of fact a firm conviction as to the allegation sought to be established. Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996). This court will not reverse a circuit court’s decision to retain jurisdiction of a juvenile’s case unless that decision is clearly erroneous. Id.

Appellant does not seriously dispute that he was charged with serious offenses and that violence was involved, but contends that the trial court erred in failing to consider the remaining statutory factors. Specifically, appellant argues that because he had two prior adjudications for which he had only received probation, there were other punishments available to him within the juvenile system, and therefore it could not be said that he had little or no prospects for rehabilitation. Appellant contends he met his burden as the moving party through Smith’s testimony.

Appellant’s argument is without merit. This court has repeatedly held that the use of violence in committing a serious offense is a factor sufficient in and of itself for a circuit court to retain jurisdiction of a juvenile. Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993). The trial court’s order specifically found that the charges stemmed from a “drive-by” shooting in a residential neighborhood, that the charges were serious in nature, two of which were Class B felonies with a punishment range of five to twenty years each, and that violence was employed in the firing of a total of six .380-caliber rounds toward an individual and residence. It is of no consequence that appellant may or may not have personally used a weapon, as his association with the use of a weapon in the course of the crimes is sufficient to satisfy the violence criterion. Collins v. State, 322 Ark. 161, 908 S.W.2d 80 (1995) (citing Walter v. State, 317 Ark. 274, 878 S.W.2d 374 (1994)). Furthermore, no violence beyond that necessary to commit the offense charged is necessary. Cole, 323 Ark. 136, 913 S.W.2d 779. It is not apparent that the trial court failed to consider the remaining statutory factors. The order made findings with respect to appellant’s age and education level as well as his prior adjudications and punishments.

The circuit court’s order retaining jurisdiction is affirmed.

Dudley, Newbern, and Glaze, JJ., concur.

Tom Glaze, Justice,

concurring. This case is a companion appeal to one we handed down on February 19, 1996, Macon v. State, 323 Ark. 498, 915 S.W.2d 273, and involves identical facts and contentions. There is, however, a difference in the two juveniles’ ages. That difference is what prompts my concurring opinion.

In Macon, we rejected the seventeen-year-old juvenile’s argument that the trial court had failed to consider factors (2) and (3) of Ark. Code Ann. § 9-27-318(e) (Supp. 1995) when deciding whether to transfer his case to juvenile court. We then determined the proof was sufficient to support the trial court’s holding that Macon’s actions and offenses exhibited a serious and violent nature under § 9-27-318(e)(l), and affirmed the decision, denying Macon’s motion to transfer. We added that Macon failed to show the trial court clearly erred in finding Macon was not a good prospect for rehabilitation, especially in view of the fact Macon would turn eighteen years old within thirty days after the hearing. See McGaughey v. State, 321 Ark. 537, 906 S.W.2d 671 (1995). For example, a person who has reached his eighteenth birthday cannot be committed to a youth services center. Ark. Code Ann. §§ 9-27-331 (a)(1) and 9-28-206 (Supp. 1995); Bright v. State, 307 Ark. 250, 819 S.W.2d 7 (1991).

The Macon decision is unquestionably controlling here, because juvenile Courtney Guy’s actions and offenses are the same as Macon’s, and therefore support denial of his motion to transfer under § 9-27-318(e)(l). However, unlike Macon who had turned eighteen years old only days after his transfer hearing, Guy was only sixteen at the time of his hearing; thus, existing rehabilitation programs (such as youth services center) were still available for Guy, assuming he had met the other requirements of § 9-27-318(e). Because Guy’s prior offenses involved misdemeanor criminal trespass and theft, I believe he would have been a viable candidate for rehabilitation except for the seriousness of his and his accomplices’ actions and employment of violence.

In sum, I would affirm solely on the basis that Guy failed to show the trial court erred in finding the proof supported its denial decision under § 9-27-318(e)(1).

Dudley and Newbern, JJ., join this concurrence.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Robert Lee JONES v. STATE of Arkansas
    CR 95-33
    916 S.W.2d 736
    Supreme Court of Arkansas
    Opinion delivered March 11, 1996

      Henry J. Swift, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant, Robert Lee Jones, appeals the judgment of the Mississippi County Circuit Court, filed on October 3, 1994, finding him guilty of one count of capital murder for the felony murder of Estella Black committed in April of 1993. Appellant was tried by a jury and sentenced to life imprisonment without parole. Jurisdiction is properly in this court pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant raises four arguments for reversal. We find no error and affirm the trial court’s judgment.

1. Sufficiency of evidence

Appellant argues that there was insufficient evidence to support his conviction for capital murder. We consider this argument first because the double-jeopardy clause, as interpreted in Burks v. United States, 437 U.S. 1 (1978), precludes a second trial when a judgment of conviction is reversed for insufficient evidence. Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). Appellant has failed to preserve this issue for our review due to a lack of specificity in his motions for directed verdict below.

Appellant moved for a directed verdict at the close of the state’s case, as follows:

THE COURT: Let the record reflect that the State having rested, we’re in chambers at the request of the defense for the purpose of making a motion for a directed verdict challenging the sufficiency of the evidence.
MR. SWIFT [COUNSEL FOR DEFENDANT]: That’s correct.
THE COURT: And the motion will be denied.
(End of hearing.)

Proceedings then resumed in the courtroom at which time the defense immediately rested. The record states that “defense renewed the motion for a directed verdict which was heard and denied.”

It is well-established that a challenge to the sufficiency of the evidence requires the moving party to apprise the trial court of the specific basis on which the directed-verdict motion is made. E.g., Mitchell v. State, 323 Ark. 116, 913 S.W.2d 264 (1996); Haltiwanger v. State, 322 Ark. 764, 912 S.W.2d 418 (1995). Neither appellant’s original directed-verdict motion nor his renewal motion indicates that any specific deficiency in the evidence was called to the trial court’s attention. Because there was a failure to raise the specific basis for a directed verdict at trial, appellant cannot now challenge the sufficiency of the evidence on appeal. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).

2. Speedy trial

Appellant argues the trial court erred in denying his motion to dismiss on the ground that the state failed to timely bring him to trial. Ark. R. Crim. P. 28.1. Appellant’s trial began on September 14, 1994, a date more than twelve months after the speedy-trial period began on April 9, 1993, when appellant was taken into custody and incarcerated from that point forward. Thus, appellant established a prima facie case that a speedy-trial violation occurred, and the burden shifted to the state to show the trial court that the delay was the result of the appellant’s conduct or otherwise legally justified. Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993). We find that the state met this burden.

On February 18, 1994, appellant filed a motion for continuance to obtain a psychological examination, to obtain discovery materials purportedly withheld by the state, and because:

4. As further grounds for this matter to be continued, the attorney for the Defendant has developed physical problems which will make it difficult for him to adequately represent the Defendant at trial. It is possible that the attorney for the Defendant may be hospitalized as a result of these physical problems in the next few days.

On February 18, 1994, appellant filed a separate motion for psychiatric examination. By order filed on February 22, 1994, the case was continued on appellant’s motion to the first day of the next term of court on May 31, 1994. Appellant does not dispute, on appeal, the period of delay excluded under this order.

The gravamen of appellant’s argument is that it was error to exclude the period of delay from May 31, 1994, until September 6, 1994, on the basis of the following order that was filed on September 13, 1994:

Now, on this 12th day of September, 1994, upon Motion of the Defendant, Robert L. Jones, by and through his attorney, Henry Swift, IT IS HEREBY CONSIDERED, ORDERED AND ADJUDGED that the above-captioned case is continued from May 10, 1994 until September 6, 1994 due to the illness of Henry Swift.
IT IS FURTHER ORDERED that the time between the dates be an excluded period of time within the meaning of the Speedy Trial Rules.

The September 13 order was signed by Circuit Judge Samuel Turner, Jr. The hearing on appellant’s motion to dismiss was conducted by Circuit Judge Gerald Pearson.

Appellant argues that the September 13 order was obtained by the state, without action on the part of him or his trial attorney, Henry Swift, and was not reflected by any docket entry, as required by Ark. R. Grim. P. 28.3(i), and, therefore, the period of delay from May 31, 1994, until September 6, 1994, cannot be charged against him.

At the hearing on the motion to dismiss, the trial court requested evidence regarding the September 13 order. Deputy Prosecuting Attorney Richard Rhodes testified that, on or about May 9, 1994, he received a telephone call from Dr. Reggie Cullom, Mr. Swift’s physician, who advised him that Mr. Swift was hospitalized, that Mr. Swift had informed him that he had a number of cases ready for trial in the upcoming term of court at the end of May, that Mr. Swift would be in no condition to try any cases in June, and asked that Mr. Swift’s cases be continued due to his poor physical condition.

The trial court stated that pretrial criminal proceedings were held on May 10, 1994, for the term of criminal court that commenced on May 31, 1994. Mr. Rhodes testified that he went to the pretrial proceeding on May 10, 1994, and talked to Judge Turner, who indicated that he had also received a communication from Dr. Cullom.

Mr. Rhodes testified that, at the May 10, 1994 pretrial proceeding, Judge Turner announced that Mr. Swift was hospitalized and unable to try his cases in the upcoming term of court, and that all of Mr. Swift’s cases were continued.

At the hearing on the motion to dismiss, Mr. Rhodes provided the trial court with a copy of a letter dated May 12, 1994, from Deputy Prosecutor Charles R. Easterling to Mr. Swift. Although the letter concerned another criminal case, it contained the following language that is pertinent to this appeal:

At the Osceola pre-trial on May 10, Judge Turner advised that he had been advised that you were having significant health problems which have resulted in your hospitalization and also your unavailability to try cases during the upcoming criminal term commencing May 31. It was Judge Turner’s understanding that you wished to have all of your cases continued on defense motion until the next term which is September 6.

The record shows that a copy of the May 12 letter was filed in this case on May 23, 1994. Mr. Rhodes testified that, when appellant filed the motion to dismiss in August 1994, he examined the court docket, found no entry for May 10th, and, thereupon, prepared a written order memorializing the continuance from May 10, 1994, until September 6, 1994, that was granted at the May 10, 1994 pretrial proceeding.

At the hearing on the motion to dismiss, Deputy Prosecuting Attorney Shannon Langston testified that, on September 13, 1994, she filed the order continuing the case from May 10, 1994, until September 6, 1994, after she talked with Judge Turner and showed him Mr. Easterling’s letter. Ms. Langston testified that Judge Turner glanced at the letter, had no qualms about signing the continuance order, and said that he did not believe he had not made docket entries that day, was very sorry that he had not made docket entries, and did remember making an announcement before court. Ms. Langston also testified that Mr. Guy Long, who had been described by Mr. Swift as someone “I could have and did have so he could sit with me at trial,” was present in court on May 10, 1994, and “was in agreement.”

At the hearing on the motion to dismiss, Mr. Swift testified that he was hospitalized in Memphis, Tennessee, from May 3, 1994, until his discharge on May 31, 1994. Mr. Swift did not controvert the fact that Judge Turner orally continued all of Mr. Swift’s cases on May 10, 1994. Mr. Swift testified, however, that he did not request a continuance from May 31, 1994, and that neither Dr. Cullom nor Mr. Long was authorized to act for him or appellant.

The trial court determined that the delay from May 10, 1994, to September 6, 1994, was excludable by order of Judge Turner, and denied the motion to dismiss, stating:

Now, perhaps it’s unfortunate — well, it’s certainly true that Mr. Swift did not file a motion for continuance for the May term of court. No docket entry was made by the Court at that time. However, it is abundantly clear to the Court in reconstructing the record as to what actually transpired that the case was set for the May ‘94 session of court, that Mr. Swift was ill, hospitalized for a period of 27 days, three weeks or so, having been discharged on May 31st, the date set for trial.
It’s clear abundantly to the Court that the State would not have been able to proceed to trial on May the 31st and subpoenaed witnesses and have them here for trial on that date under the circumstances. It’s grossly unfair that the State would be penalized for not having tried the case at the May 31st session of court under the circumstances.
Communication was had with the judge and prosecuting authorities that Mr. Swift was not physically able to try the case during that period of time.

We find no error in the trial court’s ruling. First, the period of delay from May 31, 1994, to September 6, 1994, is excludable, pursuant to Ark. R. Crim. P. 28.3(h), for good cause. Appellant does not contest the fact of the continuance that was ordered at the May 10, 1994 pretrial proceeding, only that he did not request the continuance. However, we have held that, even absent a defendant’s specific request for a continuance, a trial delay that is attributable to the defendant may constitute “good cause” for exclusion of the delay, pursuant to Rule 28.3(h). E.g., Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993) (delay occasioned by defendant’s motion to remove his court-appointed counsel); Clements, 312 Ark. 528, 851 S.W.2d 422 (delay occasioned by the trial court’s removal of defense counsel who were found negligent and held in contempt of court); Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991) (delay occasioned by the defendant’s motion to sever filed on the eve of trial). In this case, we do not hesitate to attribute the continuance that was ordered at the May 10, 1994 pretrial proceeding to appellant, inasmuch as it was a necessary and reasonable accommodation to him occasioned by the undisputed illness and hospitalization of his trial counsel until the first day of the criminal court term, May 31, 1994.

Second, although Judge Turner did not set forth the excluded period in a written order or docket entry on May 10, 1994, as required by Rule 28.3(i), we have held that a trial court’s failure to comply with Rule 28.3(i) does not result in automatic reversal of the conviction if a contemporaneous record is made that reveals the delaying act is attributable to the accused. Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993). In Clements, 312 Ark. 528, 851 S.W.2d 422, we held that a nunc pro tunc order prepared and filed by the prosecution to memorialize a continuance that was attributable to the accused was sufficient where the record also reflected that the continuance was memorialized in the proceedings at the time. Accord Lewis, 307 Ark. 260, 819 S.W.2d 689. In this case, although no contemporaneous record was made by Judge Turner when he orally continued the case on May 10, 1994, by reason of Mr. Swift’s health problems, Judge Turner remedied that oversight by the order that was filed on September 13, 1994. Further, the record contains the May 12, 1994 letter of Mr. Easterling, which also sets forth the dates and basis for the May 10 continuance, as memorialized in the September 13 order. This case is distinguishable from other decisions in which we have found that, in addition to the trial court’s noncompliance with Rule 28.3(i), the state failed to prove that the disputed delay was legally justified. E.g., Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991) (finding the trial court’s order excluding period of delay violated Rules 28.3(b) and 28.3(i)); Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993) (finding no proper continuance indicating the reasons for delay was granted by the trial court when continuance was ordered). In the present case, in contrast, the state has clearly demonstrated that the disputed delay was the result of appellant’s conduct. This record is sufficient to satisfy Rule 28.3(i).

Finally, the record reveals a docket entry dated September 6, 1994, that provides: “Cont. to 9/14/94 for mo. Speedy Trial.” We understand this entry to memorialize a trial delay from September 6, 1994, until September 14, 1994, as a result of appellant’s motion to dismiss. Appellant does not dispute, on appeal, this excluded period of delay. On September 14, 1994, the trial commenced.

On this record, the state has met its burden of showing that the delay was legally justified. Therefore, the trial court did not err in denying the motion to dismiss.

3. Motion to suppress

Appellant makes the following statement in his brief to this court:

[Ajppellant feels he should call attention to the fact that he was questioned for 4 days, without benefit of the presence of Counsel or family, before giving the so called confessions; and that he never signed the statements.
Appellant feels the Lower Court was in error in not requiring greater proof the voluntariness of the confession.

By this statement, we understand appellant argues that the trial court erred in denying his motion to suppress two separate oral statements that he gave while in custody at the police department. In each statement, appellant declared that he believed he killed the victim. The first statement was given on Saturday, April 10, 1993, 4:11 p.m.; the second statement was given on Sunday, April 11, 1993, 3:30 p.m. Both statements were tape recorded and subsequently transcribed. At trial, the recordings of both statements were admitted into evidence and played.

At the evidentiary hearing on the suppression motion, testimony was given by Osceola Police Department Officers J.C. Brewer and A.C. Simmons, appellant, and Osceola District Municipal Court Judge William Lee Fergus. At the conclusion of the hearing, the trial court ruled both statements were voluntarily given prior to appointment of defense counsel for appellant, and denied the suppression motion.

We have stated that, on appeal, we make an independent determination of the voluntariness of a confession, but, in doing so, “ ‘we review the totality of the circumstances and will reverse only when the trial judge’s finding of voluntariness is clearly against the preponderance of the evidence.’ ” Trull v. State, 322 Ark. 157, 160, 908 S.W.2d 83, 84 (1995) (quoting Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991)). We do not reverse unless the trial court’s finding is clearly erroneous, recognizing that conflicts in the testimony are for the trial court to resolve. Id.

Appellant testified at the suppression hearing that he was released after he was questioned the first time, but was detained at the jail after he was picked up the second time. Appellant testified that Officer Simmons “kept asking me . . . and I kept telling him I didn’t know.” Other evidence introduced at the suppression hearing reveals that appellant was questioned and released on April 7, 1993, arrested on April 9, 1993, and detained by the police thereafter. Officers Brewer and Simmons identified five copies of a form document that informed appellant of his legal rights and waived those rights. Those documents were respectively dated April 7, 1993, 2:00 p.m.; April 9, 1993, 8:50 a.m.; April 10, 1993, 9:00 a.m.; April 10, 1993, 4:11 p.m.; and April 11, 1993, 3:30 p.m. The record of the suppression hearing does not reveal any other interviews during the period from April 7 to April 11, 1993.

At the suppression hearing, appellant testified that Officer Simmons read something to him at the jail, which he did not really understand because he (appellant) was under the influence of alcohol. When asked again at the suppression hearing whether he understood what Officers Simmons and Brewer had read to him, appellant testified that he could not remember. Officer Simmons recalled that he detected no alcohol from appellant’s person or in his manner or speech when he drove appellant to the jail.

The waiver form for the April 10 recorded statement was introduced into evidence at the suppression hearing and is dated April 10, 1993, 4:11 p.m. Officer Brewer testified that, prior to the April 10 recorded statement, he read the waiver form to appellant and appellant verbally responded in the affirmative to each question listed thereon. Officer Brewer stated that Officer Simmons was present during the reading of the waiver form, that appellant was asked to sign the waiver form if he understood his rights, and that appellant signed the waiver form in his presence. Officer Simmons corroborated Officer Brewer’s testimony. Both officers signed the waiver form and were present at the ensuing interview.

The waiver form for the April 11 recorded statement was not introduced into evidence at the suppression hearing or at trial, but the testimony from the suppression hearing reveals that it is dated April 11, 1993, 3:30 p.m. Both officers testified that the waiver form for the April 11 interview was read, acknowledged, and signed by appellant and by both of them in the same manner as described for the April 10 recorded statement. Both officers testified that Officer Brewer left after the April 11 waiver form was read and signed, and was not present at the interview that day. Officer Simmons testified that he was off-duty on Sunday, April 11, and that the interview that day was initiated by appellant when the station contacted him at home and informed him that appellant wanted to talk to him.

Appellant testified that Officer Simmons told him that he would help him and get him some help. Both officers testified that no force or coercion was used on appellant or any promises made to him to obtain either of the recorded statements.

It is undisputed that appellant was not accompanied by an attorney when the two recorded statements at issue were given. Appellant testified that Officer Simmons did not ask him if he wanted a lawyer. Officer Simmons testified that he specifically recalled informing appellant that he had a right to an attorney, and that appellant never asked for one. Appellant testified that “they” told him he had a lawyer. When asked at the suppression hearing who he was told was his lawyer, appellant testified that he had not known at the time.

Judge Fergus testified that he conducted the probable-cause proceeding at Officer Brewer’s office on Sunday, April 11. Judge Fergus recollected that the probable-cause proceeding occurred in the afternoon, possibly late afternoon, and that, just before he went to the police station, a statement had been taken from appellant that afternoon. Judge Fergus testified that, although the probable-cause affidavit indicated that bond was set and a public defender appointed, those matters would not have been done until the next day in court. Officer Simmons testified that the April 11 statement was given before appellant was bound over.

On this record, appellant has not demonstrated that the trial court’s finding that both of the recorded statements were voluntarily given prior to appointment of defense counsel is clearly erroneous. The conflicts in the testimonies were for the trial court to resolve. Trull, 322 Ark. 157, 908 S.W.2d 83. Therefore, the trial court did not err in denying the motion to suppress.

4. Tape recordings and transcriptions

Appellant argues that the trial court erred in refusing “to dismiss” the two tape recordings that were the subject of the aforementioned suppression hearing and the transcripts of those statements when they were offered at trial.

At trial, Officer Brewer identified the original tape recording of the April 10 statement, which was introduced into evidence, without objection, and played for the jury. Over appellant’s objection, the trial court instructed the jury that they would be permitted to have a transcription of the recording to aid in understanding the recording and that, if any discrepancies were noted, they must consider only the tape recording as it was the evidence and the transcription was just an aid. The transcription was not admitted into evidence. After the tape recording was played, the secretary who prepared the transcription testified that, at the beginning of the transcript, she had typed April 12 as the date of the interview. The secretary testified that that date had been changed in ink by someone else to read April 10. The secretary testified that, without listening to the tape, she did not know if the date she had typed was a typographical error or not.

Appellant moved to strike the April 10 statement on the ground that it was taken with the knowledge that counsel had been appointed to represent him and had not been informed of the interview. The trial court denied the motion to strike, stating that the discrepancy in the date had previously been addressed at the suppression hearing and that Officer Brewer had there testified that, when he noticed the clerical error on the transcription, he had manually corrected it so that it stated the correct date of the recorded statement, which was April 10. The trial court stated that if the recording itself stated that the interview occurred on April 12, then appellant would be heard further.

The state then conceded that the disputed date was not a part of the recording. On cross-examination, Officer Brewer testified that the statement of the date was not on the tape, that whoever typed the transcript put it' there, that he had manually changed the date from April 12 to April 10, and that the interview recorded was that conducted on April 10, 4:15 p.m. Appellant did not renew his motion to strike.

We observe that, at the hearing on the motion to suppress the April 10 and April 11 recorded statements, Officer Simmons stated that he never interviewed appellant after the April 11 probable-cause proceeding.

The transcription of the challenged recording, as noted, was never admitted into evidence. On this record, we do not find that appellant has demonstrated as clearly erroneous the trial court’s finding that the April 12 date in the transcription was a simple clerical error. Therefore, the trial court did not err in denying the motion to strike the recording of the April 10 statement.

Appellant argues that the April 11 tape recording and its transcription, which was prepared by a different secretary, should have been dismissed due to the possibility of taint. This argument, which is based upon a false premise, is clearly without merit.

Conclusion

In accordance with Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for prejudicial errors objected to by appellant but not argued on appeal, and no such errors were found in this case.

Affirmed.

Dudley and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. It was the State’s burden to show that the delay of Robert Lee Jones’s trial from May 31, 1994, until September 10, 1994, was attributable to Mr. Jones. To bear that burden the State was required to show a written order or docket entry. Ark. R. Crim. P. 28.3(i). The majority opinion concludes the continuance from May 10, 1994, to September 10, 1994, was attributable to Mr. Jones. To exclude the time from the speedy trial period, the docket entry must be made at the time the continuance is granted to the defendant. Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993); Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). No such docket entry was made, and that should be the end of this case.

The majority opinion cites no evidence whatever that Mr. Jones either made a continuance motion for the period in question or was aware of one having been made on his behalf. In the belated nunc pro tunc continuance order, signed and entered the day before the trial began on September 14, 1994, it is stated that Mr. Jones sought a continuance through his counsel. Judge Pearson specifically found that Mr. Swift did not make such a motion on Mr. Jones’s behalf. In considering the matter he said:

It’s certainly true that Mr. Swift did not file a motion for continuance for the May term of court. No docket entry was made by the court at that time. However, it is abundantly clear to the court in reconstructing the record as to what actually transpired that the case was set for the May 1994 session of court, that Mr. Swift was ill, hospitalized for a period of 27 days, three weeks or so, having been discharged on May 31st, the date set for trial.

What we have in the way of reconstruction of the record is a letter from a special prosecutor, Mr. Easterling, saying that Judge Turner continued Mr. Swift’s cases, and the testimony of two other prosecutors about a continuance granted on the basis of phone calls by a doctor. We do not even have in the record any testimony by the doctor that he was requested by anyone to inform the Court of Mr. Swift’s illness, much less evidence that he was authorized to request a continuance on Mr. Jones’s behalf.

Even if we could say that Mr. Swift’s hospitalization until May 31, 1994, might have been good cause to continue Mr. Jones’s trial until some later date, the State made no showing why the case was not tried in June, July, or August of 1994. In his remarks, Judge Pearson noted that the case was once set for August 10, 1994, but was inexplicably not tried on that date. Although there are references to various “terms of court,” according to Ark. Code Ann. § 16-13-1002(a)(l)(ii) (Repl. 1994), the term of court of the Circuit Court in the Osceola District of Mississippi County begins on the fourth Monday in February and runs for one year. Subsection (b) of that statute provides that the courts of the Second Judicial District shall always be open for the transaction of business on all matters over which they have jurisdiction except on days excluded by law. Again, we are left with no docket entry or other contemporaneous record of any further continuance or reason why the case was not tried after the recorded continuance ended May 31, 1994.

In a puzzling way, the majority opinion cites and seems to rely on Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993), and Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993), which emphasized the need for a contemporaneous record of any continuance. In the Clements case we honored a nunc pro tunc order only because the continuance was otherwise memorialized on the record at the time it was granted. The majority opinion in the case now before us says “Judge Turner remedied that oversight by the order filed on September 13, 1994.” No explanation is given as to how his nunc pro tunc order complied with the requirement of a contemporaneous docket entry or other record of the granting of the continuance.

To affirm on the basis of “other good cause” or Judge Turner’s belated order is directly contrary to our decision in the Hicks case. There we reversed and dismissed a conviction because of violation of the speedy trial rule and the lack of any writing or record of a continuance. We said:

Although it is not expressly stated in the rule, we have said that a trial court should enter written orders or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify to a day certain, the time covered by such excluded periods (emphasis added). McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). In order to provide any impetus behind Rule 28.3, we must adhere to this language; otherwise, there is no need for the rule.

We noted that the only docket entry made in an attempt to comply with the rule in the Hicks case was made nine days after the speedy trial period had run. In this case, the State originally had until April 9, 1994, to bring Mr. Jones to trial. The time was properly extended until May 31, 1994. The only written record of any further continuance appeared 105 days thereafter. If the right of the accused and the public to have trials conducted in accordance with our rules designed to bring accused persons to trial promptly are to have any meaning, this case should be dismissed.

I respectfully dissent.

Dudley, J., joins.