author: PER CURIAM.

text:
    Patricia OSBURN v. Bryan BUSBEE d/b/a Busbee Construction
    99-1097
    4 S.W.3d 127
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      Charles R. Chadwick, for appellant.
    No response.
   PER CURIAM.

Appellant Patricia Osburn seeks reconsideraIAM. dismissal order of her appeal which was entered on October 14, 1999, granting a Motion to Dismiss filed by Appellee Bryan Busbee, d/b/a Busbee Construction (“Busbee”). Bus-bee’s Motion to Dismiss stated that Osburn’s failure to include language in her Notice of Appeal and Designation of Record that she had made financial arrangements with the court reporter for payment of the record required dismissal. This court dismissed Osburn’s appeal, but on different grounds. We dismissed the appeal for lack of jurisdiction because Osburn filed her Notice of Appeal untimely.

Osburn argues in this Motion to Reconsider that the court erred in calculating the time for filing her Notice of Appeal pursuant to Ark. R. Civ. P. 5(c)(2) and 6(a). She also contends that July 7, 1999, rather than July 8, 1999, should have been the filing date of the Notice of Appeal because it was filed by fax before midnight on July 7, 1999. Appellant’s motion is denied as it remains untimely filed under Rule 5(c)(2).

Osburn states in her motion that her appeal originates from a Washington County Circuit Court matter in which that court ruled that Busbee was entitled to a judgment and Hen against Osburn for repairs made to certain properties Osburn owned. The trial court entered its order on June 22, 1999, and Osburn filed a Motion for Amended Judgment or for New Trial in a pleading file-marked July 8, 1999. The trial court denied this motion in an order entered August 3, 1999. Appellant then filed her Notice of Appeal and Designation of Record on August 19, 1999.

Appellant filed her Motion for Amendment of Judgment or for New Trial pursuant to Ark. R. Civ. P. 52 and 59 respectively. Rule 52 and Rule 59 require that these motions be filed within ten days after the entry of the judgment in order for the court to consider them and to toll the thirty-day time limit for filing a Notice of Appeal. See Benedict v. National Bank of Commerce, 329 Ark. 590, 951 S.W.2d 562 (1997). Here, Osburn filed her motion by facsimile which indicates that it was sent at 11:56 p.m. on July 7, 1999, but file-marked on July 8, 1999. Under the time computation guidelines in Rule 6(a), filing on July 7 would have been timely, but filing on July 8 was not. Osburn argues in her brief in support of her motion that her facsimile filing was timely pursuant to Rule 5(c)(2) which Osburn quotes as stating:

A facsimile copy shall be deemed received when it is transmitted and received on the clerk’s facsimile machine without regard to the hours of operation of the clerks’ office. The date and time printed by the clerk’s facsimile machine on the transmitted copy shall be prima facie evidence of the date and time of the filing.

However, the rule has been changed. This court’s per curiam order entered on January 28, 1999, altered the language in Rule 5(c)(2) to read as follows:

Rule 5 is further amended by revising paragraph (2) of subdivision (c) to read as follows:
(2) If the clerk’s office has a facsimile machine, the clerk shall accept facsimile transmissions of any paper filed under appearing on a facsimile copy shall be presumed authentic until proven otherwise. The clerk shall stamp or otherwise mark a facsimile copy as filed on the date and time that it is received on the clerk’s facsimile machine during the regular hours of the clerk’s office or, if received outside those hours, at the time the office opens on the next business day. (Emphasis added.)

In Re: Arkansas Rules of Civil Procedure, 336 Ark. 588 (1999). The commentary following the amended rule notes that this rule was changed because “the date and time are printed by the sender’s facsimile machine, not the clerk’s.” As such, Osburn’s faxed Notice of Appeal, which was received by the clerk outside regular office hours on July 7, 1999, was not filed with the court until July 8, 1999. It, therefore, was beyond the deadline for filing a Notice of Appeal. Appellant’s motion to reconsider is denied.


source: Caselaw Access Project

author: PER Curiam.

license: Public Domain

text:
    Charles A. “Jack” WALLS III v. STATE of Arkansas
    CR 99-1267
    4 S.W.3d 492
    Supreme Court of Arkansas
    Opinion delivered November 18, 1999

      Hubert W. Alexander and Jon Johnson, for appellant.
    No response.
   PER Curiam.

Appellant Charles A. “Jack” Walls, III, by and through am. attorneys, has filed a motion for a rule on the clerk. His attorneys, Hubert W Alexander and Jon Johnson, state in the motion that the record was tendered late due to a mistake on their 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:
    Joseph DEAN, Earnest Simes, Geraldine Davis, Clausey Myton, and Arlanda Jacobs v. The Hon. Randall WILLIAMS, Circuit Court of Phillips County
    99-1364 and 99-1353
    5 S.W.3d 37
    Supreme Court of Arkansas
    Opinion delivered November 22, 1999

      Wilson & Valley, by: Jimmie L. Wilson, J.F. Valley, and André K. Valley; and John Walker, for petitioners.

      Friday, Eldredge & Clark, by: William A. Waddell, Jr., for respondent.
   PER CURIAM.

Petitioners have filed requests for writ of prohibition and certiorari and additional motions for stay in each case. The cases have been assigned the respective numbers 99-1364 and 99-1353. Although respondents assert they have never been served with the petitioners’ requests and motion, they submit they called this court’s clerk’s office, learned of the petitioners’ requests and have filed a response, but at the same time denying sufficient time to respond properly. A partial record has been filed along with petitioners’ requests. In petitioners’ partial record and request for writ of certiorari, they state that the trial court has held them in contempt, and that they have filed a notice of appeal. In addition to the foregoing claims, petitioners further submit the Federal Civil Rights Act and Arkansas Civil Rights Act have been violated. Other issues also have been alleged by petitioners. Respondents submit the partial record is insufficient to reach the issues raised by the parties.

In view of the contempt matter pending below and on appeal, and petitioners’ stay request, we expedite these matters so this court may consider at least those immediate issues dealing with the petitioners’ duty, if any, for calling an election under Acts 1357 and 1478 of 1999 and whether the petitioners can be held in contempt for refusing to do so. One other issue needing expedited treatment is whether the trial court had jurisdiction to enter the orders it issued. Respondents ask us to deny the relief sought by petitioners, stating that no travesty of justice will occur if a stay is not granted, and that petitioners have chosen their course of defiance to the circuit court’s orders. This court has authority to expedite matters concerning elections and to enter a stay where a contempt order involving incarceration has been entered. We are unaware of any reason why we should not proceed in this same manner in this case, especially since in expediting this case we can promptly decide the three pressing issues the parties have brought to our attention.

We direct counsel for petitioners and respondents to brief the above three issues and file simultaneous briefs on or before 9:00 a.m., Monday, November 29, 1999. The petitioners’ writ of certiorari is granted directing the court reporter to file the transcript of the November 18, 1999 contempt hearing held below. The transcript must be filed on or before Wednesday, November 24, 1999 at 5:00 p.m.

Oral arguments are hereby set on the foregoing immediate issues on Tuesday, November 30, 1999 at 9:00 a.m. Meanwhile a temporary stay is issued concerning the trial court’s contempt order at least until this court has had the opportunity to hear and review the record and arguments relating to the relevant issues now under consideration.

It is so ordered.


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

text:
    John Lee HUDDLESTON v. STATE of Arkansas
    CR 99-682
    5 S.W.3d 46
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Shannon L. Blatt and Robert S. Blatt, for appellant.

      Mark Pryor, Att’y Gen., by: Vada Berger, Asst. Att’y Gen., for appellee.
   WH. “Dub” Arnold, Chief Justice.

On September 17, stjury ice. appellant, John Lee Huddleston, as a habitual offender and found him guilty of possession of amphetamine with intent to debver and possession of drug paraphernalia. The trial court fined him $10,000.00 and sentenced him to life imprisonment and to a ten-year term in the Arkansas Department of Correction. In light of appellant’s sentence, our jurisdiction is warranted pursuant to Ark. Sup. Ct. R. l-2(a)(2) (1999). On appeal, Huddleston contends that the trial court erred by (1) denying his motion to dismiss on speedy-trial grounds, (2) granting the State’s motions in limine to exclude the testimony of three defense witnesses and the affidavit of a fourth witness, and (3) denying his motion for a new trial based upon a claim of ineffective assistance of counsel. We find no merit in appellant’s arguments, and we affirm the trial court. ■

Following his arrest on May 16, 1996, Huddleston was charged by information on May 20, 1996, with possession of a controlled substance with intent to deliver and possession of drug paraphernalia. The arrest stemmed from an incident at the Englander Motel. While executing an arrest warrant for Kelly Mendoza, police officers entered Mendoza’s motel room, also occupied by Mendoza’s daughter and appellant. Appellant told the police to leave if they did not have a warrant and, after being informed that they did, appellant continued to interfere with Mendoza’s arrest. Subsequently, Huddleston was arrested for interfering, and during a search of his clothing, police discovered two ounces of methamphetamine and saw other drug paraphernalia within plain view.

I. Speedy trial

Huddleston’s first point on appeal submits that the State failed to timely prosecute him in violation of his right to a speedy trial. Ark. R. Crim. P. 28.1 and 28.2(a) require the State to try appellant within twelve months of the date of arrest or the filing of the information, whichever occurs first, here, May 16, 1996, excluding any periods of delay authorized by Ark. R. Crim. P. 28.3. Although Huddleston’s trial was ultimately held on September 17, 1998, on the date the trial court denied his motion, the trial was set for September 15, 1998, 852 days after his arrest. Therefore, the State has the burden of showing that the delay was the result of appellant’s conduct or was otherwise justified. See Morgan u State, 333 Ark. 294, 299, 971 S.W.2d 219, 221 (1998). In this case, the State must show that at least 487 days were properly excludable to meet this burden.

The State contends that at least 569 days, resulting from appellant’s or his counsel’s requests for continuances, are excludable for speedy-trial purposes. Ark. R. Crim. P. 28.3(c) permits the exclusion of the delay period resulting from a continuance granted at a defendant’s or his counsel’s request. See Smith v. State, 313 Ark. 93, 852 S.W.2d 109 (1993). Specifically, the State points to four periods of time chargeable to the appellant. First, pursuant to appellant’s or his counsel’s request, the trial court continued the case from August 30, 1996 to November 12, 1996, for a total of seventy-four days. Second, the trial court continued the case from December 9, 1996 to February 10, 1997, for sixty-three days. Third, the case was continued from May 12, 1997 to May 11, 1998, for 364 days, and, fourth, from July 8, 1998 to September 14, 1998, for 68 days. These four periods total 569 days, well in excess of the 487 days necessary to affirm the trial court’s ruling. We agree that the State met its burden by demonstrating that the periods were properly excludable due to the requested continuances.

Essentially, appellant argues that the trial court erred in charging certain periods to him because he demanded a speedy trial, in his lawyer’s presence, and that his attorney requested a sixty-day continuance without consulting him, over his implied objection. However, Rule 28.3(c) permits the exclusion of periods resulting from a continuance granted at either the defendant’s or his counsel’s request. In fact, we have held that continuances granted at a defendant’s attorney’s request are excludable from the speedy-trial time, even if the defendant does not approve or is not consulted. Matthews v. State, 268 Ark. 484, 490, 598 S.W.2d 58, 61-62 (1980). In light of the foregoing, we conclude that Huddleston’s right to a speedy trial was not violated, and we affirm the trial court’s decision denying his motion to dismiss.

II. Exclusion of defense testimony and affidavit

Appellant’s second point on appeal challenges the trial court’s grant of the State’s motion in limine to exclude the testimony of three defense witnesses, Gary Lee, Jimmy Cureton, and Lisa Didway, and the affidavit of a fourth witness, Ruth Cloud. On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert, denied, 117 S. Ct. 246 (1996).

Appellant suggests that defense witnesses Cureton and Lee would have testified that they had personal knowledge that the police involved in Huddleston’s arrest may have planted drugs in other instances. Additionally, Lisa Didway, appellant’s former girlfriend, would have testified that Wayne Barnett, one of the police officers who arrested Huddleston and discovered the drugs and drug paraphernalia, contacted her in August, several months after appellant’s arrest, and urged her to plant a weapon or drugs on appellant. Although Huddleston claims that the three witnesses would also testify that Kelly Mendoza, present during his arrest, planted the drugs on appellant, the record does not support appellant’s claims. Significantly, appellant failed to proffer Lee’s and Cureton’s testimony. Without proffering this testimony to the trial court, appellant cannot claim now that the trial court erred by excluding it. See McGehee v. State, 338 Ark. 1532, 175, 992 S.W.2d 110, 124 (1999). Moreover, the trial court’s decision to exclude the testimony is supported by considerations of relevance and hearsay. See Ark. R. Evid. 801(c), 802 (1999).

Huddleston also offered the affidavit of Ruth Cloud to support his theory that the police were involved in “setting him up.” According to Cloud’s affidavit, her sister, Lisa Marts, cooperated with Officer Wayne Barnett to plant drugs on Marts’s husband. Again, although Barnett was involved in appellant’s arrest, Cloud’s affidavit was also properly excludable on grounds of relevance and hearsay. In any event, appellant never demonstrated that Cloud was unavailable to testify at trial.

Appellant’s final argument, that the trial court’s exclusion of the testimony violated his Sixth Amendment right to confront the witnesses against him, is equally misplaced. The Confrontation Clause is intended to permit a defendant to confront witnesses and to provide him with the opportunity to cross-examine those witnesses. As the State correctly points out, neither of those interests is implicated here. In sum, we conclude that the trial court did not abuse its discretion by excluding the testimony of Lee, Cureton, and Didway, and the affidavit of Cloud.

III. Ineffective assistance of counsel

Huddleston’s third point on appeal argues that the trial court erred by denying his motion for a new trial on the ground that he received ineffective assistance of counsel. The proper method for relief to challenge the adequacy of counsel’s representation is a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1. Carrier v. State, 278 Ark. 542, 647 S.W.2d 449 (1983). Postconviction relief may be granted on the basis of ineffective assistance of counsel if the petitioner proves that (i) counsel’s performance was deficient, and (ii) counsel’s deficient performance prejudiced the actual outcome of the proceeding. Strickland v. Wash ington, 466 U.S. 668 (1984); Noble v. State, 319 Ark. 407, 892 S.W.2d 477 (1995).

The petitioner must overcome a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. 668; Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Moreover, the counsel’s acts and omissions are viewed from the counsel’s perspective at the time of trial. Wainwright, 307 Ark. 569; Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988). The petitioner must overcome the strong presumption of competency by clear and convincing evidence showing that he was prejudiced and that the prejudice effectively denied him a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. Strickland, 466 U.S. 668. Notably, each allegation of counsel’s incompetence must be evaluated separately. This court does not recognize cumulative error in allegations of ineffective assistance of counsel. Isom v. State, 284 Ark. 426, 682 S.W.2d 755 (1985). See Parks v. State, 301 Ark. 513, 785 S.W.2d 213 (1990); Jones v. State, 308 Ark. 555, 826 S.W.2d 233 (1992). Accordingly, Huddleston’s ineffective-assistance arguments are discussed independently.

First, appellant argues that his appointed counsel, John Joplin, was ineffective by his failure to pursue a speedy-trial claim. Specifically, Huddleston contends that when appointed, Joplin knew that appellant wanted a speedy trial and that he requested a continuance beyond the speedy-trial time. We agree with the State that this argument is not properly preserved for review because Huddleston failed to argue in his motions for new trial that counsel was ineffective because he failed to preserve speedy-trial arguments. Further, the trial court made no ruling on this issue, and we decline to consider the merits of his challenge at this time. See Alexander v. State, 335 Ark. 131, 133, 983 S.W.2d 110, 111 (1998).

Next, Huddleston claims that he received ineffective assistance of counsel because Joplin failed to adequately investigate his case and to obtain evidence in support of his defense. Specifically, appellant points to Joplin’s failure to investigate his theory that the police and Mendoza, as their agent, “planted the dope” and “set up” appellant. Additionally, appellant claims that Joplin was ineffective because he met with Huddleston only twice, for about twenty minutes each time. In response, the State argues that these points are not preserved for appeal. We agree. Ark. Sup. Ct. R. 4-2(a)(6) (1999) requires the appellant to abstract material parts of the record that are necessary to “an understanding of all questions presented to the Court for decision.” The record on appeal is confined to what appellant has abstracted or has included in his addendum. See Ark. Sup. Ct. R. 4-2(a)(8) (1999); see also Allen v. State, 326 Ark. 541, 542, 932 S.W.2d 764, 765 (1996). Here, appellant failed to abstract the guilt phase of his trial. Similarly, appellant failed to argue that Mendoza was an agent for the State, and the trial court made no ruling on this claim. Accordingly, Huddleston’s claims on these points are procedurally barred.

Also, appellant objected to Joplin’s failure to present the testimony of Gary Lee because of an alleged conflict of interest created by the Public Defender’s Office representing Lee on an unrelated charge. However, the record reveals that even if Lee had testified at trial, his new counsel acknowledged that he would be invoking his Fifth Amendment right not to incriminate himself. Consequently, appellant cannot demonstrate that he was prejudiced by Lee’s failure to testify. Moreover, as Joplin noted at the hearing, he could not call a witness knowing that he would invoke the Fifth Amendment. See Hamm v. State, 301 Ark. 154, 159, 782 S.W2d 577, 580 (1990). Again, the trial court did not rule on appellant’s claim that counsel failed to disclose an alleged conflict of interest, and this point is not preserved for appellate review.

Finally, appellant contends that he was denied effective assistance because his attorney failed to object to the introduction of an exhibit showing a prior forgery and uttering conviction. Appellant argues that the exhibit was inadmissible because it did not demonstrate that he was represented by- counsel or that he knowingly and intelligently waived his right to counsel. However, Huddleston failed to preserve this point for appeal because he did not raise it in the trial court. In any event, the exhibit provides sufficient evidence to establish that he was represented because it identifies Martin L. Green of Fort Smith as Huddleston’s attorney. See Stewart v. State, 300 Ark. 147, 150, 111 S.W.2d 844, 845 (1989). In conclusion, we hold that the trial court did not err in finding that Huddleston received effective assistance of counsel at trial.

IV. Rule 4-3(h)

In accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. We affirm the trial court on all points, and we affirm appellant’s judgment of conviction.


author: Tom Glaze, Justice.

text:
    Larry KELLAR v. FAYETTEVILLE POLICE DEPARTMENT
    99-517
    5 S.W.3d 402
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      John R. Hudson, for appellant.

      Mark Pryor, Att’y Gen., by: Annamary C. Dougherty, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

This court takes jurisdiction of this appeal tice. Sup. Ct. R. l-2(b) because it involves issues of first impression, federal constitutional interpretation, substantial public interest, and the validity of a state enactment. Specifically, this case involves the constitutionality of Act 989 of 1997 (codified as Ark. Code Ann. §§ 12-12-901 to -920 (Supp. 1999)), which is known as the Sex and Child Offender Registration Act of 1997 (hereinafter sometimes referred to as the Act or Registration Act). Appellant Larry Kellar basically questions the constitutionality of the Act as violating the ex post facto and due process clauses of the United States and Arkansas Constitutions.

In addressing Kellar’s first constitutional argument that the Registration Act violates the ex post facto clauses, we need some background on how this case was initiated. On October 5, 1994, Kellar pled guilty to two counts of first-degree-sexual abuse, concerning acts involving his three-year-old daughter, and, because he was a first-time offender, the trial court placed Kellar on three years’ probation. While Kellar was still serving his probation period, the Arkansas General Assembly passed the Registration Act on April 1, 1997, and made the Act apply to anyone who had been adjudicated of a prescribed sexual offense and was still serving a sentence of incarceration, probation, parole, or other form of community supervision at the time of the Act’s effective date, August 1, 1997. See § 12-12-905. Because Kellar had two months left on his probation and his sexual offenses were included' in those crimes named in § 12-12-905, Kellar fell within the group of offenders required to register. It is this retroactive application of the Registration Act to Kellar’s earlier convictions which, on appeal, he questions as being a violation of the ex post facto clauses.

On August 10, 1997, Kellar registered as a child sex offender with local law enforcement officials, and the police then conducted a risk assessment of Kellar as required under § 12-12-913 and the guidelines promulgated by the Sex Offenders Assessment Committee. The Committee’s guidelines provided for an offender to be assigned one of three risk levels, depending on the probability that he or she will re-offend. The risk level in turn is used to determine the type, amount, and extent of the community notification that the government will release regarding the offender. Level I provides the least information and notification to the public, Level II provides an increased amount of information and notification, and Level III grants the most. Kellar was evaluated at Level II, since his risk assessment placed him as one who posed a moderate risk of re-offending. Upon receiving his assessment, Kellar filed a petition in the Washington County Circuit Court, requesting the court declare Act 989 and the assessment and notification guidelines unconstitutional. After the trial court held the Act constitutional, Reliar brought this appeal, and we now first consider his claim that the Act and guidelines violate our ex post facto clauses.

The general rule in cases involving a question of the constitutionality of a statute is that the statute is presumed constitutional, and the burden of proving otherwise is upon the challenger of the statute. ACW, Inc. v. Weiss, 329 Ark. 302, 310, 947 S.W.2d 770, 774 (1997). Because statutes are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable. Board of Trustees of Mun. Judges & Clerks Fund v. Beard, 273 Ark. 423, 426, 620 S.W.2d 295, 296 (1981).

We commence our analysis of the ex post facto clauses by reading our Constitutions. The United States Constitution declares that “[n]o state shall . . . pass any . . . ex post facto law.” U.S. Const, art. 1, § 10. Similarly, the Arkansas Constitution provides that “[n]o . . . ex post facto law . . . shall ever be passed.” Ark. Const, art. 2, § 17. We have been given no reason why we should interpret Arkansas’s ex postfacto clause in a manner contrary to the ex post facto clause in the United States Constitution. Thus, we look to federal as well as state law for guidance. See Diffee v. State, 319 Ark. 669, 894 S.W.2d 564 (1995).

The first Supreme Court case to address the issue of ex post facto laws was Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). In deciding whether a law violates the ex post facto clause, the Calder court established the following categories to consider: 3 U.S. (3 Dall.) at 390 (italics in original). These Colder categories were rephrased by the Court in the early part of this century in Beazell v. Ohio, 269 U.S. 167 (1925), to read as follows:

1st. Every law that makes an action done before the passing of the law, and which was innocent, when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
. . . any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto. The constitutional prohibition and the judicial interpretation of it rest upon the notion that laws, whatever their form, which purport to make innocent acts criminal after the event, or to aggravate an offense, are harsh and oppressive, and that the criminal quality attributable to an act, either by the legal definition of the offense or by the nature or amount of the punishment imposed for its commission, should not be altered by legislative enactment, after the fact, to the disadvantage of the accused.

269 U.S. at 169-70.

The Colder category most relevant to the instant case is the third one, and under that rule, Act 989 would violate the ex post facto clause if it is a law “that changes the punishment, and inflicts a greater punishment than the law annexed to the crime, when committed.” Colder, 3 U.S. (3 Dall.) at 390. Thus, two questions must be answered: does the Act apply retrospectively to Kellar, and does it constitute punishment? Both parties concede that the law was applied retrospectively; therefore, we are left to decide only whether the Act is punitive in nature or merely regulatory. If it is regulatory, or civil in nature, it cannot be an ex post facto law. See, e.g., Weaver v. Graham, 450 U.S. 24 (1980); United States v. Ward, 448 U.S. 242 (1979). The overriding inquiry in such situations was enunciated by the Court in DeVeau v. Braisted, 363 U.S. 144 (1960):

The question in each case where unpleasant consequences are brought to bear upon an individual for prior conduct, is whether the legislative aim was to punish that individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation ....

363 U.S. at 160.

At the outset of this discussion, we note that the vast majority of federal and state courts confronted with the issue of the validity of sex-offender registration statutes have found the laws constitutional. Examples of federal decisions follow: Cutshall v. Sundquist, Nos. 97-6276, 97-6321, 1999 WL 781829 (6th Cir. Oct. 4, 1999) (Tennessee Sex Offender Registration and Monitoring Act did not violate double jeopardy, ex post facto, bill of attainder, due process or equal protection clauses); Russell v. Gregoire, 124 F.3d (9th Cir. 1997) (statute showed regulatory, not punitive, effect, so no violation of ex post facto clause); Doe v. Pataki, 120 F.3d 1263 (2d Cir. 1997) (neither registration nor notification provisions under New York act inflicted punishment under ex post facto clause); E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997) (notification under New Jersey Registration and Community Notification Laws did not constitute punishment for purposes of ex post facto and double jeopardy clauses); Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996) (challenge to notification aspects of New Jersey law not ripe, but registration requirements do not violate ex post facto, double jeopardy, bill of attainder, equal protection, or due process clauses); Roe v. Farwell, 999 F. Supp. 174 (D. Mass. 1998) (registration requirements of Massachusetts law not violative of ex post facto clause, although unlimited public access provisions too broad to be constitutional); Lanni v. Engler, 994 F. Supp. 849 (D. Mich. 1998) (purpose of law to protect public, not to punish offenders, so not an ex post facto law); W.P. v. Poritz, 931 F. Supp. 1199 (D.N.J. 1996) (effect of law is not to constitute punishment, so not ex post facto).

State cases upholding such registration and notification laws constitutional against ex post facto challenges are as follows: Robinson v. State, 730 So. 2d 252 (Ala. 1998) (registration and notification requirements are not punishment); Patterson v. State, 985 P.2d 1007 (Alaska 1999) (stated legislative intent is regulatory); People v. Castellanos, 982 P.2d 211 (Cal. 1999) (no legislative intent to punish, and any effect not so punitive as to outweigh remedial intent); Jamison v. People, No. 98CA0782, 1999 WL 184594 (Colo. App. April 1, 1999) (intent of statute remedial, not punitive); Modi v. State, No. CR A. IN95-08-1733, 1999 WL 167835 (Del. Super. Feb. 22, 1999) (law not ex post facto); Ray v. State, 982 P.2d 931 (Idaho 1999) (registration act a collateral consequence of guilty plea); Doe v. Criminal History Syst. Bd., Civ. Action No. 96-6046, 1997 WL 100878 (Mass. Super. Feb. 25, 1997) (intent to protect public, and effect non-punitive); State v. Torres, 574 N.W2d 153 (Neb. 1998) (sex-offender statute collateral consequence of guilty plea); State v. Costello, 643 A.2d 531 (N.H. 1994) (any punitive effect of registration statute de minimis); Doe v. Poritz, 662 A.2d 367 (N.J. 1995) (intent clearly remedial in purpose, not punitive); Commonwealth v. Gaffney, 733 A.2d 616 (Pa. 1999) (law serves non-punitive goals of public safety, and effect not so harsh as to render it punishment); White v. State, 988 S.W.2d Til (Tex. App. 1999) (statute not punitive and therefore not an ex post facto law); Kitze v. Commonwealth, 475 S.E.2d 830 (Va. App. 1996) (registration requirement not penal); Snyder v. State, 912 P.2d 1127 (Wyo. 1994) (intent not to inflict greater punishment, but to facilitate law enforcement and protect children); see also Licia A. Esposito, Criminal Registration Statutes, 36 ALR 5th 161 (1996 and Supp. 1999).

The many jurisdictions that have considered the question of whether sex-offender registration statutes are punitive or regulatory have utilized a variety of tests to answer the inquiry. However, the prevailing trend seems to follow a two-part analysis. First, we must determine the intent of the legislature in passing the Sex and Child Offender Registration Act (i.e., did it intend for the Act to be punitive, or was its goal merely to provide a regulatory framework?); second, we must look further to see if, despite a stated non-punitive intent, the effect of the Act is nonetheless “so punitive either in purpose or effect as to negate that intention.” See United States v. Ward, 448 U.S. at 248-49.

The General Assembly, in enacting the Registration Act, stated that the purpose of the Act was to protect the public from sex offenders and to assist law enforcement in so protecting the public safety. Ark. Code Ann. § 12-12-902 (Supp. 1999). Indeed, Kellar concedes that the intent of the Act is non-punitive. Therefore, because the stated intent is not to punish, we must examine the effects of the Act, looking to see whether it “transform[s] what was clearly intended as a civil remedy into a criminal penalty.” Hudson v. United States, 522 U.S. 93, 99 (1997) (quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154 (1956)).

In making this determination, many courts have looked to a series of factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963):

Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned are all relevant to the inquiry, and may often point in differing directions.

Kennedy, 372 U.S. at 168-69 (footnotes omitted) (bracketed numbers added). See Roe v. Farwell, 999 F. Supp. 174 (D. Mass. 1998); State v. Burr, 598 N.W.2d 147 (N.D. 1999); State v. Cook, 700 N.E.2d 570 (Ohio 1998); People v. Logan, 705 N.E.2d 152 (Ill. 1998); Collie v. State, 710 So. 2d 1000 (Fla. App. 1998); State v. Pickens, 558 N.W.2d 396 (Iowa 1997); State v. Myers, 923 P.2d 1024 (Kan. 1996); State v. Manning, 532 N.W2d 244 (Minn. App. 1995); State v. Ward, 869 P.2d 1062 (1994); State v. Noble, 829 P.2d 1217 (Ariz. 1992).

Not every state analyzes all seven factors. For example, the Kansas Supreme Court did not apply the factors as a pass/fail test or in a checklist fashion, but considered only those it found “provide^] significant guidance.” Myers, 923 P.2d at 1040. Other courts utilized each factor, albeit giving some more weight and consideration than others. Cook, 700 N.E.2d at 582-85. But even these jurisdictions note that there is “no absolute test to determine whether a retroactive statute is . . . punitive . . . .” Id. at 582. Most recognize that the court’s “task is not simply to count the factors on each side, but to weigh them.” Noble, 829 P.2d at 1224.

We turn to our own analysis of Arkansas’s Act in light of the Kennedy factors. Commencing with the first factor, we note that Arkansas’s Registration Act has as its announced purpose the preservation of public safety, and, significantly, the Act’s provisions impose no specific affirmative disability or restraint on an offender required to register under it. The Act only requires that an offender complete a registration form in the format prepared by the Director of the Arkansas Crime Information Center (ACIC). Ark. Code Ann. § 12-12-906(a)(l). An offender is not prevented from coming and going within or without the state; he (or she) need only notify local law enforcement authorities no later than thirty days after establishing residency in Arkansas. Ark. Code Ann. § 12-12-906(a)(2). After registering, an offender must verify his address with ACIC each six months, and must report a change of address to ACIC no later than ten days before moving. Ark. Code Ann. § 12-12-909.

In addition, the Act does not suffer from the same infirmities which nullified the community notification provisions in the Kansas version of the Act. See Myers, 923 P.2d at 1043. In Kansas, the law provided for essentially unlimited public disclosure; there were no affirmative restrictions on anyone accessing the information. For that reason, the Kansas Supreme Court found that the effect of the law could make it impossible for an offender to find housing or employment. Id. at 1041. In contrast, Arkansas’s law provides strict guidelines on how and by whom the information in the registry is to be used; any agency or official subject to reporting requirements under the Act who knowingly fails to comply with the requirements is guilty of a Class B misdemeanor. Ark. Code Ann. § 12-12-904(b). Moreover, the information an offender is required to give is not subject to disclosure under the Arkansas Freedom of Information Act, Ark. Code Ann. § 12-12-913(e)(2). Thus, we hold the Act does not impose any affirmative disability or restraint on an offender.

The second Kennedy factor to consider is whether registration has historically been regarded as a punishment. Some jurisdictions have found it to be so, see. Noble, 829 P.2d at 1222, and Kellar argues that registration and public disclosure of his sex offenses is punitive and analogous to the wearing of a scarlet letter or is the incarnation of traditional stigmatization penalties such as stocks, pillories, and branding. We first point out that historical shaming punishments are not identical to notification or public disclosures, in large part, because historical shaming punishments entailed more than the dissemination of information. First, the intent of such punishment was punitive since whipping, branding, stockading, and banishment were the punishment for the offender’s particular transgression. Notification, on the other hand, occurs after the sex offender has been punished. Second, such punishment “required the physical participation of the offender and typically required direct confrontation between the offender and members of the public.” Russell, 124 F.3d at 1091. The purpose, method, and process of such punishment are completely different from public notification. We believe the better reasoning when addressing this historical element of the Registration Act is to first recognize that the dissemination of information regarding criminal conduct, without more, is not punishment when done to advance a legitimate government purpose or objective. Verniero, 119 F.3d at 1099-1100. The more apt analogy to the public disclosure of sex-offender registry information is “the required dissemination of information generated by our criminal justice system and the subsequent dissemination of ‘rap sheet’ information to regulatory agencies, bar associations, prospective employers and interested members of the public.” Id. at 1100. Another traditional and comparable situation is where posters are placed or published in the community of an armed and dangerous individual. Because these analogies have not historically been regarded as punishment, we conclude that historical precedent does not demonstrate an objective punitive purpose. Cf.Jd.at 1101.

The third factor in Kennedy concerns the scienter element. States have taken at least two approaches with this factor. Some recognize that scienter “comes into play when the offender is adjudicated guilty of the underlying offense.” Collie, 710 So. 2d at 1010; see also Manning, 532 N.W.2d at 247-48 (because the registration requirement is dependent upon the conviction of an underlying crime, there will necessarily be a finding of scienter). Other states hold that- there is no element of scienter inherent in the registration statute, stating rather that the “offender need only be released into the community to trigger the provisions of these statutes.” Cook, 700 N.E. at 583; Logan, 705 N.E.2d at 159. In our case, no scienter is indicated in Arkansas’s Act, and we conclude the offender’s failure to register alone is sufficient to trigger the Act’s provisions. Accordingly, we hold this factor is not indicative of a punitive effect.

Under Kennedy’s fourth factor, we must consider whether the Act serves the traditional deterrent and retributive aims of punishment. It is possible that the fact of registration will deter some registered offenders from re-offending, but it is equally likely that the deterrence would come from their conviction and incarceration. In any event, the existence of a deterrent effect, by itself, does not render the entire Act punitive in nature. Burr, 598 N.W.2d at 154; Ward, 869 P.2d at 1073.

Next, the fifth factor is whether the behavior to which the law applies is already a crime. That simply is not the situation here. Certainly, Act 989 requires Kellar to register because he had been convicted of sex crimes. Nevertheless, any punishment imposed on him under the Registration Act would flow from his failure to register, not from a past sex offense. See Cook, 700 N.E.2d at 584; cf. Arizona Dep’t of Publ. Safety v. Superior Court, 949 P.2d 983 (Ariz. 1997) (behavior that triggers the registration and notification requirement is release from prison, which is not a crime). In other words, the punishment is not applied retroactively for an act that was committed previously, but instead, for a subsequent violation of the Act.

The sixth factor in Kennedy—whether there is some purpose other than punishment that can rationally be associated with the law—is easily addressed. Clearly, as even Kellar admits, the Act serves the dual purposes of protecting public safety and providing information to law enforcement authorities.

It is the seventh and final factor which weighs most heavily in the balance in Arkansas, as in most other states: the question of whether the Act is excessive in relation to its alternative purposes. This last factor requires a brief examination of the three-tiered structure of Arkansas’s registration and notification rules. Under the guidelines promulgated by the Sex Offender Assessment Committee, an offender, as previously discussed, can be assigned to one of three risk assessment levels, depending on the probability that he or she will re-offend. The risk level assessment, in turn, determines the type of information and amount of community notification that will be released regarding a particular offender.

For a Level I offender, only the offender, adult members of the offender’s household, and local law enforcement agencies receive the information contained in the offender’s fact sheet, which contains such data as the offender’s assigned risk level; the name (and any aliases), birth date, social security number, and physical description of the offender; a recent photograph; and a description of the offense for which the offender was convicted, among other things. A Level II offender will be subject to the same scope of notification, but could also, at the discretion of local law enforcement, have the information subject to dissemination to any establishments and organizations that primarily serve individuals likely to be victimized by the offender. For a Level III offender, it is mandatory that notification be given to all of the above; in addition, subject to the discretion of law enforcement authorities, the same information may be released to any other members of the community the offender is likely to encounter. At this level, the community notification is essentially unlimited.

In deciding whether or not to exercise their discretion in releasing this information to the public, law enforcement authorities may consider the offender’s prior history, offense characteristics, employment, recreational, social or religious interests and the characteristics of likely victims. These considerations, coupled with the limited disclosure provisions attendant upon the lower two risk-level assessments, strongly indicate that the sex-offender registration statute is tailored to address specific governmental interests. Therefore, we conclude that the law is not excessive in relation to its stated non-punitive purposes.

Given the overall balance of the Kennedy factors, we are left with the conclusion that, while there may be some punitive characteristics inherent in the registration and notification statute, the Act is essentially regulatory and therefore non-punitive in nature. Because it is not a form of punishment, it therefore cannot be considered a violation of the ex post facto clauses of the United States and Arkansas Constitutions.

For his second point on appeal, Kellar argues that he was deprived of his due process rights because he did not have an opportunity at the initial stage of the registration proceedings to contest either the assessment level assigned to him by the Fayetteville Police Department or the constitutionality of the Act before the police department. He presents us with a question of procedural due process, which requires that an individual be given an opportunity to be heard at a meaningful time and in a meaningful manner. Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 457, 784 S.W.2d 771, 775 (1990). The due process requirements of the Constitution are satisfied when an adequate post-deprivation procedure exists. Id.

Kellar relies on Doe v. Poritz, 662 A.2d 367 (N.J. 1995), for his argument that due process should have required a hearing and judicial review before notification to the community of his status as a sex offender. Poritz does indeed state that, because the New Jersey notification statute implicates the privacy and liberty interests of an offender who has been classified as a Tier II or Tier III offender, a hearing is required prior to notification at these levels. However, Kellar was afforded a hearing before Judge Kim Smith on December 30, 1998. Therefore, Kellar’s reliance on Poritz is misplaced.

For the reasons given above, we uphold the trial court’s decision finding Act 989 constitutional.

       The Committee’s predecessor was the Arkansas Child Abuse, Rape, and Domestic Violence Commission.

         Kellar filed a petition for a writ of certiorari below as was provided for by the Committee’s guidelines, and while that remedy is questionable, no one raises the issue, and we need not address it here.


author: TOM Glaze, Justithis

text:
    R.S. McCULLOUGH v. STATE of Arkansas
    99-314
    5 S.W.3d 38
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Brown & Assoc., by: Darrell F. Brown; and McCullough Law Firm, by: R.S. McCullough, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Asst. Att’y Gen., for appellee.
   TOM Glaze, Justithis

Appellant R.S. McCullough brings this appeal from an order holding him in direct contempt of court and imposing on him a $100.00 fine and forty hours of community service. The court of appeals certified this case to us under Ark. Sup. Ct. R. l-2(a)(5) (1999). Mr. McCullough argues two points for reversal — (1) the evidence is insufficient to support the trial court’s finding that McCullough’s disobedience was willful, and (2) the trial court had in other cases failed to apply the law of contempt equally to prosecuting attorneys and defense counsel. Because Mr. McCullough did not raise or preserve his second point at trial, he is barred from arguing that point for the first time on appeal. Chase v. State, 334 Ark. 274, 973 S.W.2d 791 (1998). We proceed, and address and decide his first argument only.

Mr. McCullough represented Jimmy Carl Cunningham, Jr., who had been charged with the rape and third-degree carnal abuse of Ricardo Davis, a fourteen-year-old. Trial was set for August 5, 1998, and immediately prior to trial, Mr. McCullough filed a motion wherein he asserted that he had relevant evidence of Davis’s prior sexual conduct prohibited by the Rape Shield Statute, Ark. Code Ann. § 16-42-101 (Supp. 1999), that he believed was relevant and should be allowed into evidence. Although provisions (c)(1) and (2) (A) of the Statute provide that a hearing shall be held in camera no later than three days before the commencement of the trial, Circuit Judge John Langston allowed Mr. McCullugh to proceed on his belated motion. The motion reads as follows:

1. The defendant has an offer of relevant evidence of the victim’s past sexual conduct.
2. Said conduct shows that the alleged victim has a pattern and practice of falsely accusing and fantasizing about sexual relationships with adult males.
3. Such evidence would show the absence of mistake or accident.

McCullough told Judge Langston, “[T]here likely will be the advent of other testimony of other conduct that the young man [Davis] has had and initiated with other adult males in the past and I’ve got some questions and reservations as to whether or not that actually is a Rape Shield matter.” Judge Langston disagreed, ruling, “[I]t’s specifically covered . . . .” While Judge Langston offered Mr. McCullough the opportunity to elicit testimony in support of his motion, McCullough failed to do so, acknowledging that his witness, Mr. Kwame, although subpoenaed, had not appeared. Judge Langston then admonished McCullough that the hearing on his motion must be completed before they proceeded with the trial. Without further evidence being produced, the judge stated McCullough’s proffer was inadmissible and instructed Mr. McCullough, “You may not mention it [the proffered evidence] to the jury in any form.” The judge, finding the offered proof irrelevant to any fact issue, instructed counsel that any willful attempt to make reference to prohibited evidence in the presence of the jury would subject counsel to appropriate sanctions.

On the second day of the Cunningham trial, Mr. McCullough called Davis as a witness and asked him about a man named Gary Lewis. Davis said that he had met Lewis in Little Rock, and that Lewis was a member of a ballet troupe or dance group. McCullough then asked Davis, “You accused him [Lewis] of making sexual advances toward you, didn’t you?” After Davis said, “I don’t recall,” the State, with the judge’s permission, approached the bench and, out of the hearing of the jury, stated, “This is in violation of the Rape Shield Statute.” Judge Langston agreed and ruled McCullough’s actions called for sanctions.

Judge Langston later opted for a different judge to hear and consider (1) whether Mr. McCullough’s actions during Cunningham’s trial constituted contempt, and (2) if sanctions were warranted. Judge John B. Plegge heard the matter on exchange on October 1, 1998. McCullough was the sole witness, but Judge Plegge also had before him the pertinent parts of the transcript of the August 5, 1998, hearing and trial. He also heard additional arguments of counsel for the State and Mr. McCullough.

At the October 1 hearing, McCullough attempted to explain why he pursued his Une of questioning with Davis concerning Gary Lewis, despite Judge Langston’s ruling just the day before that similar testimony involving Kwame would be inadmissible. In brief, McCullough argued that the evidence concerning Kwame was covered under the Rape Shield Statute because, in that context, Davis’s sexual conduct was in issue. There, Kwame’s testimony would have been that Davis had made sexual advances toward Kwame. Testimony regarding that kind of conduct, argues McCullough, was distinguishable from his examination of Davis at trial because there, McCullough’s questioning of Davis about Lewis was directed at Davis’s credibility, rather than his actions. McCullough’s point was that his examination suggested that Davis had falsely accused Lewis of making sexual advances toward him, and that, if he had been allowed to continue with that line of questioning, he would have shown that Davis had recanted that accusation. Therefore, Davis’s contact with Lewis did not involve the kind of sexual conduct protected by the Rape Shield Statute because it went to his credibility and not to his conduct.

While McCullough does not now try to justify his actions at trial by asserting Judge Langston erred in treating Kwame’s and Lewis’s offers of proof the same under the Statute, he does contend that “the plain language of the Statute supports that he reasonably believed that his questioning of Davis was not in violation of either the trial court’s order or the Rape Shield Statute.” Put in other terms, he concludes there is insubstantial evidence for the trial court to have found he wiEfuEy disobeyed Judge Langston’s order. We must disagree.

McCuUough is right in choosing not to argue that Judge Langston’s findings of contempt were erroneous because his Rape Shield Statute rulings were wrong. Our contempt law is settled that where the faEure or refusal to abide by an order of the court is the issue, we do not look behind the order to determine whether the order is valid. Etoch v. State, 332 Ark. 83, 964 S.W.2d 798 (1998); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993). However, McCullough is mistaken that there is no substantial evidence to support contempt on his part. The motion McCuEough filed on the first day of.trial very clearly asserted that he wished to introduce evidence of Davis’s conduct which showed Davis had exhibited a pattern and practice of falsely accusing and fantasizing about sexual relationships with adult males. Judge Langston just as clearly ruled such conduct was covered by the Statute, and was irrelevant and inadmissible. Nonetheless, on the next day of trial, Mr. McCullough violated the Judge’s order by posing a question suggesting that Davis had falsely accused Gary Lewis of making sexual advances toward Davis. It is significant, too, that Mr. McCullough posed such a question even though Judge Langston had forewarned him that he would be subject to sanctions if he made reference to such prohibited evidence. In addition, McCullough never asked Judge Langston to consider, in camera, the propriety of McCullough’s posing such a question to Davis in the presence of the jury. Instead, he asked the question, knowing the subject he was about to address had been specifically mentioned in his motion the day before and ruled on and denied by the judge.

After reviewing the pertinent parts of the transcript of the Cunningham trial and listening to McCullough’s and counsel’s argument, Judge Plegge found Judge Langston’s rulings and orders were clear — a finding with which McCullough’s counsel in argument agreed. Judge Plegge also concluded that, even though McCullough had been forewarned against referring to the prohibited evidence at trial, McCullough, through his aggressive advocacy, did so despite of Judge Langston’s admonitions. In these matters, this court views the record in the light most favorable to the trial judge’s decision and sustains that decision if it is supported by substantial evidence and reasonable inferences. Etoch, 332 Ark. at 87, 964 S.W.2d at 800. In doing so, we hold the judge had sufficient evidence to find Mr. McCullough in contempt. Therefore, we affirm.


author: DONALD L. Corbin, Justice.

text:
    Jerry RAINEY and James Harton v. James HARTNESS, In His Individual Capacity as Wildlife Officer for Grant County
    99-529
    5 S.W.3d 410
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Bowden Law Firm, by: David O. Bowden, for appellants.

      Mark Pryor, Att’y Gen., by: Patricia Van Ausdall Bell, Ass’t Att’y Gen., for appellee.
   DONALD L. Corbin, Justice.

Appellants Jerry Rainey and James tice. civil-rights suit in the Grant County Circuit Court against Appellee James Hartness, a wildlife enforcement officer with the Arkansas Game and Fish Commission. The suit alleged that Hartness (1) entered their property without authority; (2) seized Harton’s rifle through an illegal search and converted it without due process of law and just compensation; and (3) damaged their crops by driving over them on a four-wheel, all-terrain vehicle. The trial court granted summary judgment to Hartness, and Appellants appealed. Our jurisdiction of this appeal is pursuant to Ark. Sup. Ct. R. l-2(a)(l) & (b)(3), as it presents issues of construction of both the United States and Arkansas Constitutions. We find no error and affirm.

Appellants’ claims involve actions that occurred on the morning of October 21, 1995, during muzzleloading deer season. The record reflects that Appellants were engaged in hunting on wooded land owned by Rainey and leased by Hartón. Appellants were situated at deer stands in different areas of the land. Hartness was patrolling the area that morning, when he noticed unattended vehicles on Rainey’s property, leading him to believe that people were hunting there. Hartness rode his four-wheel vehicle onto the property, where he first encountered Rainey at his deer stand. When Hartness asked to see Rainey’s hunting license, Rainey initially produced the license of someone else. Hartness issued Rainey a citation, pursuant to Regulation 03.06 of the Arkansas Game and Fish Commission Regulations (the Regulations), for being in possession of the hunting license of another person.

Hartness then followed the path to another deer stand, where he encountered Hartón. According to Hartness, Hartón came down from his deer stand without being asked to do so. Hartness considered this strange because it was a cold morning and because hunters normally wait for him to come up to them. Hartón stated that he was muzzleload hunting, and he produced a license to do so. After viewing the license, Hartness climbed up the ladder and looked through the opening in the deer stand. There, he saw a Marlin Lever Action .22 caliber rifle with a scope. Hartness took possession of the rifle and issued Hartón a citation for violating Regulation 07.03, which provides that it is “unlawful to have in immediate possession a centerfire or rimfire weapon while participating in muzzleloading deer seasons.”

Appellants were found guilty of the violations in municipal court. Hartón, however, appealed his conviction to circuit court. There, Hartón argued that at the time Hartness issued the citation, he had not been elected by the Commission, pursuant to Amendment 35 of the Arkansas Constitution. Thus, he argued that the citation was invalid. The circuit judge agreed with Harton’s argument and granted the State’s motion for nolle prosequi. Hartness retained possession of Harton’s gun, pursuant to the deputy prosecutor’s instructions, in the event the charges were refiled. The gun was returned to Hartón some time after the instant suit was filed; Hartón signed a receipt, indicating that the gun was returned in good condition.

Appellants brought their suit pursuant to the Arkansas Civil Rights Act of 1993, Ark. Code Ann. §§ 16-123-101 to -108 (Supp. 1999), and 42 U.S.C. §§ 1983 and 1988. Appellants alleged that Hartness’s actions on October 21, 1995, violated their constitutional right to be free from unreasonable searches and seizures. They alleged further that the seizure of Harton’s rifle violated his right to bear arms and was a taking without due process and just compensation. Lastly, they alleged that Hartness damaged their crops by driving over them on his four-wheel vehicle. They also sought declaratory judgments from the trial court that (1) Hartness was not an elected wildlife enforcement officer, and (2) Regulation 07.03 is unconstitutional under Article 2, § 5, of the Arkansas Constitution and the Second Amendment to the United States Constitution. The trial court granted Hartness’s motion for summary judgment on all claims and denied the requested declaratory judgments. We first address Appellants’ argument pertaining to Hartness’s status as a wildlife enforcement officer, as that issue will have considerable bearing on the remaining points.

Election under Amendment 35

Appellants argue that the trial court erred in finding that Hartness had been elected by the Commission as a wildlife enforcement officer on October 21, 1995. They argue that, at a minimum, summary judgment was not appropriate because there were issues of fact yet to be determined. They contend further that the January 12, 1995 election is invalid because the Commission failed to publish the election results (/. e., in the Commission’s minutes) in violation of the Arkansas Administrative Procedures Act (APA). We disagree.

Appellants’ argument stems from a 1994 holding by the Grant County Circuit Court, The Honorable John Cole, that Amendment 35 requires the Commission to elect wildlife officers such as Hartness. Judge Cole specifically found that Hartness had not been elected and that, accordingly, he was not authorized to issue citations for Game and Fish violations.According to his affidavit in the instant case, Hartness brought Judge Cole’s ruling to the attention of his supervisors. In January 1995, Hartness was informed by his supervisors that an election had been held and that the Commission had elected him to the position of wildlife enforcement officer. At some point in September 1996, however, it was discovered that the minutes for the January 1995 meeting did not reflect his election. As a result, the Commission reelected Hartness as a wildlife enforcement officer.

We note at the outset that the parties did not argue the merits of Judge Cole’s ruling to the trial court. Thus, for purposes of this appeal, we assume, without deciding, that Amendment 35 requires the Commission to elect wildlife officers. Given that assumption, we agree with the trial court that the proof submitted by Hartness, which consisted largely of affidavits from the individual Commissioners and other staff members, conclusively showed that Hartness was elected to his post on January 12, 1995, approximately ten months prior to the incident in question. The law is well settled that summary judgment may be granted when it is clear that there are no genuine issues of material fact to be litigated and the party is entided to judgment as a matter of law. Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913 (1999). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party “must discard the cloak of formal allegations and meet proof with proof by showing that an issue of fact exists.” Hodges v. Huckabee, 338 Ark. 454, 464, 995 S.W.2d 341, 348 (1999). Appellants failed to meet proof with proof on this issue. We thus affirm the grant of summary judgment.

We do not address the argument pertaining to the applicability of the APA, as it is not apparent from Appellants’ abstract that this issue was ever raised or ruled upon below. Where the abstract does not reflect that the argument was made in the trial court, we will not reach the merits of the argument on appeal. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998); Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997). Having thus affirmed the trial court’s finding that Hartness was a wildlife enforcement officer during the time in question, we consider the constitutional claims. Before we reach the substance of those claims, however, we must first determine whether Hartness is entitled to qualified immunity.

Qualified Immunity Federal Law

Generally, government officials performing discretionary functions are granted a qualified immunity from suit under section 1983 and are “shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts evaluating a claim of immunity must determine whether the plaintiff has alleged the deprivation of an actual constitutional right and, if so, whether that right was clearly established at the time of the alleged violation. Id. This court adopted the Supreme Court’s test for qualified immunity in section 1983 cases in Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839 (1987). The issue of whether the official’s conduct violated clearly established constitutional rights is a question of law that may be resolved by summary judgment. Id. With this test in mind, we turn to the Fourth Amendment issue.

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article 2, § 15, of the Arkansas Constitution is virtually identical to the Fourth Amendment, and we interpret it in the same manner as the United States Supreme Court interprets the Fourth Amendment. See Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801, cert. denied, 117 S. Ct. 2411 (1997); Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995).

The Supreme Court has recognized that the protection afforded by the Fourth Amendment does not extend to open fields or lands. United States v. Dunn, 480 U.S. 294 (1987) (citing Hester v. United States, 265 U.S. 57 (1924)). This court has also recognized the “open fields” doctrine. See, e.g., Sanders v. State, 264 Ark. 433, 572 S.W.2d 397 (1978); Wyss v. State, 262 Ark. 502, 558 S.W.2d 141 (1977); Bedell v. State, 257 Ark. 895, 521 S.W2d 200 (1975), cert, denied, 430 U.S. 931 (1977). Additionally, Rule 14.2 of the Arkansas Rules of Criminal Procedure provides: “An officer may, without a search warrant, search open lands and seize things which he reasonably believes subject to seizure.”

Here, the evidence showed that Rainey’s property was open, wooded land. Appellants admit in their complaint that the land was used for the recreational purpose of hunting deer and other game. Regulation 01.00-B provides in pertinent part that wildlife officers have authority to “go upon any property outside of private dwellings, posted or otherwise, in the performance of their duties,” and that they “may with or without a warrant according to law, conduct searches.” In their memorandum below, Appellants essentially concede that if Hartness was a properly elected wildlife officer, he had authority to come onto Rainey’s land. Thus, Hartness’s entry onto the property on his four-wheel vehicle did not violate the Fourth Amendment or Article 2, § 15. The question then is whether Hartness’s actions in climbing up the ladder to look into Harton’s deer stand violated those constitutional provisions. Appellants urge that Harton enjoyed a legitimate expectation of privacy in his deer stand, and that, therefore, the warrantless search of the stand’s interior violated the Fourth Amendment. We disagree.

Within the meaning of the Fourth Amendment, a search “occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Roby, 122 F.3d 1120, 1123 (8th Cir. 1997) (quoting United States v. Jacobson, 466 U.S. 109, 113 (1984) (footnote omitted)). A person who knowingly exposes an object to the public cannot expect the protection from unreasonable search and seizure provided by the Fourth Amendment. Webster v. State, 300 Ark. 169, 777 S.W.2d 849 (1989) (citing Katz v. United States, 389 U.S. 347 (1967)). “[E]ven a property interest in premises may not be sufficient to establish a legitimate expectation of privacy with respect to particular items located on the premises or activity conducted thereon.” State v. Hamzy, 288 Ark. 561, 565, 709 S.W.2d 397, 399 (1986) (quoting Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978) (citing Katz, 389 U.S. 347; Lewis v. United States, 385 U.S. 206 (1966); United States v. Lee, 274 U.S. 559 (1927); Hester, 265 U.S. 57)). When an expectation of privacy is claimed, the trial court must determine: (1) Whether the defendant has asserted or manifested a subjective expectation of privacy, and (2) whether that expectation is objectively reasonable. United States v. Stallings, 28 F.3d 58 (8th Cir. 1994). Although the first prong is a question of fact, the second is one of law. Id. Thus, even assuming that the defendant has proven a subjective expectation of privacy, in the final analysis, that expectation must be objectively reasonable. Id. After reviewing the evidence in this case, we conclude that the trial court did not err in finding that, as a matter of law, Harton enjoyed no legitimate expectation of privacy in the deer stand.

The evidence presented below demonstrates that the stand was little more than a metal box, with sides three to four feet high and a roof elevated on poles at each corner of the box. Persons standing inside the box were exposed to the public’s view, as Hartness testified that he observed Harton on the stand as he approached the area. There was no evidence that Harton used the stand to engage in private activity, other than eating meals, or that he attempted to shield his activities from the public. Moreover, Harton employed no apparent means of restricting access to the stand. Stallings, 28 F.3d 58. There was no evidence that the structure was inaccessible to other persons (i.e., that the hatch door was locked or that the ladder was removed whenever he was not using the stand), only Harton’s claim that it was not open to use by other persons unless he invited them. Accordingly, there was a “theoretical possibility” that “animals, children, scavengers, snoops, and other members of the public” would happen onto the stand, thus rendering any claimed expectation of privacy objectively unreasonable. Id. at 61 (quoting Wabun-Inini v. Sessions, 900 F.2d 1234, 1242 (8th Cir. 1990)).

Furthermore, contrary to Appellants’ assertion, there is no evidence that the deer stand was within the curtilage of the temporary residences (i.e., campers on blocks) located on the property. Assuming, arguendo, that the campers qualify as “houses” under the Fourth Amendment, we nonetheless conclude that the stand was not within the curtilage. The Supreme Court has held that curtilage questions should be resolved with reference to four factors: (1) the proximity of the area to the home; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the uses to which the area is put; and (4) the steps taken to protect the area from observation by people passing by. Dunn, 480 U.S. 294. Here, the evidence showed that Rainey’s stand was approximately one-quarter mile away from the campers, and that Harton’s stand was approximately one-quarter mile from Rainey’s stand. Thus, the area sought to be protected (the deer stand) was approximately one-half mile away from the campers. There was no evidence of a fence or other enclosure surrounding the campers and the stand. Nor was there any evidence that the stand was used for the “intimate activities of the home.” Id. at 302. Finally, as explained above, Hartón did little, if anything, to restrict access to the stand by other persons. Accordingly, the stand was not a part of the curtilage.

Based on the foregoing, we conclude that, Hartness was entitled to qualified immunity from Appellants’ federal civil-rights claims. Hartness’s conduct on October 21, 1995, did not violate any clearly established constitutional rights possessed by Appellants. Appellants enjoyed no rights under the Fourth Amendment that would protect them from (1) Hartness’s entry onto their property and (2) Hartness’s search of Harton’s deer stand. Because Hartness’s search of the stand was legal under the Fourth Amendment, his seizure of the rifle as evidence was valid. Rule 10.2 of the Arkansas Rules of Criminal Procedure provides’that a permissible object of seizure includes evidence of a criminal offense or other violation of the law. Accordingly, seizure of the gun was not a “taking” proscribed by Article 2, §§ 21 and 22, of the Arkansas Constitution.

Qualified Immunity State Law

Arkansas Code Annotated § 19-10-305 (Supp. 1999) provides in pertinent part: “Officers and employees of the State of Arkansas are immune from liability from suit, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.” This court has interpreted that section to mean that state officers and employees acting without malice and within the course and scope of their employment are immune from an award of damages in litigation. See Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998); Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W2d 230 (1997). This court has recognized that the immunity provided by section 19-10-305 is similar to that provided by the Supreme Court for federal civil-rights claims. See Robinson v Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998). The facts in the instant case clearly demonstrate that Hartness was acting in the scope of his employment with the Commission at the time that he entered onto Rainey’s land. Appellants do not allege that Hartness was covered by liability insurance or that he acted maliciously. Accordingly, he is immune from damages for the state-law civil-rights claims. Hartness is also immune from the tort claim of damage to Appellants’ crops allegedly caused by his driving over them on his four-wheel vehicle.

Constitutionality of Regulation 07.03

Finally, we affirm the trial court’s refusal to declare unconstitutional Regulation 07.03, which prohibits a hunter from having in his immediate possession a centerfire or rimfire weapon while participating in muzzleloading deer seasons. Appellants had argued that the regulation infringes upon the right to bear arms guaranteed by the Second Amendment to the United States Constitution and Article 2, § 5, of the Arkansas Constitution. That argument was not, however, developed beyond that bare allegation. Furthermore, Appellants have failed to make any convincing argument or cite to any convincing authority in support of their claim. This court has stated on numerous occasions that we do not consider assertions of error that are unsupported by convincing legal authority or argument, unless it is apparent without further research that the argument is well taken. See, e.g., National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999); Ellis u Price, 337 Ark. 542, 990 S.W.2d 543 (1999); Hodges v. Lamora, 337 Ark. 470, 989 S.W.2d 530 (1999). Accordingly, we summarily affirm on this issue.

THORNTON, J., not participating.

       The State appealed Judge Cole’s ruling to this court, but the appeal was dismissed for lack of subject-matter jurisdiction. See State v. Bickerstaff, 320 Ark. 641, 899 S.W.2d 68 (1995).


author: ROBERT L. Brown, Justice.

text:
    Emma REEVES v. STATE of Arkansas
    CR 98-872
    5 S.W.3d 41
    Supreme Court of Arkansas
    Opinion delivered December 2, 1999

      Jeff Rosenzweig, for appellant.

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

Appellant Emma Reeves appeals stice. court denying her motion to modify a condition of her probation which, she contends, mandates that she be exiled from the state. We agree that the condition requires her exile, and we reverse the trial court’s order and remand the matter for resentencing in accordance with this opinion.

On February 14, 1996, a criminal information was filed against Reeves charging her with stalking in the first degree in violation of Ark. Code Ann. § 5-71-229 (Repl. 1993). On April 9, 1996, she entered into a Guilty Plea Agreement relating to this charge. The punishment agreed to by Reeves and her attorney included seven years’ supervised probation with probation conditioned on immediate entry into mental health counseling, a requirement that Reeves leave the state except for two specified return trips a year of three days each, and a requirement that she have no contact with the victim or members of his family either personally or by mail, telephone, fax, or electronically. The condition of probation contained in the agreement, which is the focal point of this case, reads as follows:

The defendant is to leave the State of Arkansas prior to April 13, 1996 and shall remain in the Lonoke County Jail until she leaves and is to remain outside the State of Arkansas until after the suspended imposition of sentence expires. (For a total period of seven years). The defendant may return to the State of Arkansas no more than two (2) times per calendar year and for no more than three (3) consecutive days per trip. Upon returning to Arkansas the defendant shall notify the Sheriff of Lonoke County that she is returning to the State of Arkansas and where she will be staying while in the State of Arkansas. Defendant shall give the Sheriff of Lonoke County at least 48 hours notice prior to returning to the State of Arkansas. Defendant shall also notify the Sheriff of Lonoke County when she is leaving the State of Arkansas. First return trip to the State of Arkansas shall be after April 15, 1997.

On that same date (April 9, 1996), a judgment and disposition order was entered sentencing her to seven years’ probation for first-degree stalking, with probation conditioned in part upon her remaining out of the state of Arkansas unless permission was obtained from the probation officer to enter the state.

Reeves then moved to Washington State, where she entered into court-ordered counseling. On August 19, 1997, Reeves filed a Motion to Modify Condition of Probation or Suspended Imposition of Sentence pursuant to Ark. Code Ann. § 5-4-306(b) (Repl. 1997). In that motion, she alleged that the condition requiring her to leave the state violated her federal and state constitutional rights against cruel and unusual punishment and due process of law. She further asserted that it violated Article 2, § 21 of the State Constitution, which prohibits exile from the state as a punishment. In the alternative, she requested a writ of habeas corpus on the grounds that she was detained by being forced to live out of state.

The State responded that Reeves’s request for relief fell within the scope of Rule 37 of the Arkansas Rules of Criminal Procedure, and because her petition was not timely, the court should reject the petition. The State also argued that habeas corpus was not applicable to this case because Reeves was not in custody, as the rule required. A hearing was held on the matter, and the trial court announced its decision in a letter to the parties:

The Court only carried out the sentence agreed to by and between the State and defendant, pursuant to a negotiated plea. This Court will not set aside a portion of the agreed sentence.
Additionally, I believe that [R]ule 37.2 of the Arkansas Rules of Criminal Procedure prohibits this Court from entertaining motions for post conviction relief.

On April 13, 1998, a formal order was entered denying the motion.

I. Jurisdiction

The first issue in this case is whether this court has jurisdiction to hear the matter. Rule 1(a) of the Arkansas Rules of Appellate Procedure—Criminal states: “Except as provided by ARCrP 24.3(b) there shall be no appeal from a plea of guilty or nolo contendere.” This principle has been endorsed by this court on many occasions. See, e.g., L.H. v. State, 333 Ark. 613, 973 S.W.2d 477 (1998); Hill v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); State v. Sherman, 303 Ark. 284, 796 S.W.2d 339 (1990).

This court has, however, recognized certain exceptions to this general principle. The first exception is alluded to in Ark. R. App. P.—Crim. 1 (a) itself and that is the procedure for a conditional plea of guilty. See Ark. R. Crim. P. 24.3(b). There is also a statutory procedure for sentencing hearings before a jury following a guilty plea. See Ark. Code Ann. § 16-97-101(6) (Supp. 1999). This court has permitted appeals relating to issues involving testimony and evidence which occurred after the guilty plea but during those sentencing hearings. See, eg., Hill v. State, supra.

A third exception has been carved out for postjudgment motions to amend incorrect or illegal sentences, which follow a guilty plea. See Hodge v. State, 320 Ark. 31, 894 S.W.2d 927 (1995); State v. Sherman, supra; Jones v. State, 301 Ark. 510, 785 S.W.2d 217 (1990); Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988). In Jones v. State, supra, we entertained an appeal from denial of the defendant’s motion for jail-time credit after a guilty plea and modified the sentence to allow for the credit. In Brimer v. State, supra, the sentence following a guilty plea included a suspended sentence with conditions to be satisfied for a period of years that exceeded the maximum sentence for the crime involved. The defendant appealed from denial of her motion to correct an illegal sentence, and we held that the sentence was unauthorized and remanded the case for resentencing.

In Hodge v. State, supra, the plea agreement signed by the defendant stated that he had one prior conviction, but at the sentencing hearing, the prosecutor presented no proof of that conviction. Hodge, accordingly, was sentenced to forty years for rape, kidnapping, robbery, and theft. The State moved to vacate the sentence after discovering two prior rape convictions. The trial court granted the motion and sentenced Hodge to life in prison. On appeal, we said: “We ... do not allow appeals from guilty pleas when the appeal alleges an error having to do with an integral part of the plea and its acceptance by a trial court. (Citations omitted.) ”Id. at 33, 894 S.W.2d at 929. We concluded, however, that the appeal from an order granting the motion to vacate was proper because the discovery of other prior convictions did not involve an error having to do with the guilty plea itself.

In State v. Sherman, supra, we held that the defendant could not appeal from the denial of a posttrial motion to correct an unexpected increase in his sentence following a guilty plea, because the increased sentence was an integral part and a direct result of his plea. We observed, however, that the defendant had a remedy in that he could move to correct an illegal sentence under Ark. Code Ann. § 16-90-111(b) (Supp. 1989) or our former Rule 37 of the Arkansas Rules of Criminal Procedure.

We view an order from a postjudgment motion to modify an illegal condition of probation pursuant to § 5-4-306(b), after a guilty plea, as sufficiently analogous to these cases dealing with postjudgment motions to correct illegal sentences. Nevertheless, in applying this authority to the case at hand, we cannot say that the exile condition for probation was not an integral part of the plea agreement. In fact, it appears to have been a vital part of the probated sentence. Thus, at first blush it would seem that this appeal does not fall within the exception to our prohibition against appeals from guilty pleas.

Two reasons, however, convince us that this appeal is well taken. The first is that we are dealing with a motion to correct a condition of probation, and probation often accompanies a guilty plea. See, e.g., Ark. Code Ann. § 16-93-101(1) (1987). It would be meaningless for the General Assembly to enact a procedure where a defendant could move to modify a condition of probation following a guilty plea but where there was no accompanying right to appeal from a denial of that motion. We do not construe acts of the General Assembly to be meaningless. See, e.g., Snyder v. State, 332 Ark. 279, 965 S.W.2d 121 (1998).

The second reason is equally convincing. Our statutes provide that a circuit court may correct an illegal sentence at any time. See Ark. Code Ann. § 16-90-111 (a) (Supp. 1999). It is true that this statute was declared superseded by the time limitations in Ark. R. Crim. P. 37.2(c), which provides for postconviction relief while in custody. See Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994). Here, however, we are not dealing with a petition for Rule 37 postconviction relief following imprisonment but rather a motion to modify a condition contained in a judgment of probation under § 5-4-306(b). A person on probation by definition is not in custody. See Black’s Law Dictionary 1220 (7th ed. 1999). Hence, Rule 37 and its time requirements do not apply. We hold that the trial court had the authority to modify this illegal condition of probation under § 16-90-111 (a).

We conclude that the order in the instant case falls within an acknowledged exception to our rule disallowing appeals from guilty pleas.

II. Exile

We turn then to the merits of this case and to the issue of whether Reeves was indeed exiled. If so, can her condition of probation relating to exile be modified?

Article 2, § 21, of the Arkansas Constitution provides:

No person shall be taken or imprisoned, or disseized of his estate, freehold, liberties or privileges; or outlawed, or in any manner destroyed or deprived of his life, liberty or property, except by the judgment of his peers or the law of the land; nor shall any person, under any circumstances, be exiled from the State.

Banishment or exile has been defined by the North Carolina Court of Appeals as an order which compels a person “to quit a city, place, or county for a specific period of time, or for fife.” State v. Culp, 226 S.E.2d 841, 842 (N.C. 1976) (quoting 8 C.J.S. Banishment p. 593).

The effect of imposing banishment or exile as a condition of probation was discussed by the Minnesota Supreme Court in 1967. See State v. Young, 154 N.W.2d 699 (Minn. 1967). In Young, the trial court granted the defendant probation on the condition that the defendant leave the State of Minnesota and take up residence in Nevada. The defendant was willing to leave the state and said so at his sentencing hearing. The defendant then sought to modify that condition. The Minnesota Supreme Court agreed that the exile condition was void and said:

We are in accord with the great weight of American decisional law which holds that it is beyond the power of a court to impose banishment as a condition of probation. The imposition of such a condition is [a]void and separable part of the judgment of conviction. The condition is unauthorized by statute, is contrary to public policy, and is repugnant to the underlying policy of the probation law, which is to rehabilitate offenders without compromising public safety.

Id. at 702. But see State v. Collett, 208 S.E.2d 472 (Ga. 1974) (Georgia Supreme Court upheld condition of probation banishing the defendant from seven counties within the state).

We have no doubt that in the case before us Reeves was effectively exiled from this state for seven years. She was permitted returns to the state twice a year for three consecutive days. Such meager visits do not cure what is essentially probation conditioned on a court-ordered exile. As already noted, exile is expressly forbidden by our state constitution, which renders this condition requiring exile void as a matter of law. The order denying the motion to modify this condition of probation is reversed, and this matter is remanded.

We are mindful in this regard of the State’s argument that a condition of probation is not necessarily invalid merely because it restricts a probationer’s ability to exercise constitutionally protected rights. See Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985). The State also urges that the exile condition is not unduly restrictive of Reeves’s liberty. See Ark. Code Ann. § 5-4-303(c) (10) (Repl. 1997). Finally, the State argues that exile is reasonably related to the stalking crime and future criminality. See Young v. State, supra. We are not persuaded by the State’s arguments. We view this situation as altogether different from the prohibition against nude dancing which was a condition of the appellant’s suspended sentence in Young v. State, supra, and which the appellant argued impinged upon her freedom of expression. In the case at hand, the public policy of this state is set forth clearly, emphatically, and unmistakably in our state constitution, and exiles such as we have before us are expressly prohibited.

What remains for this court to decide are the instructions to the trial court upon remand. The State urges that in the event of reversal, this case must go back to the trial court for complete resentencing pursuant to the guilty plea. We agree with the State that the guilty plea should remain in place. We disagree, however, that resentencing in toto is required.

The State cites us to Meadows v. State, 324 Ark. 505, 922 S.W.2d 341 (1996), for the proposition that complete resentencing is necessary. In the first Meadows appeal, we remanded the matter for resentencing because the trial court suspended execution of the sentence rather than imposition of the sentence. At resentencing, the trial court increased the years of imprisonment and the term of the subsequent suspended sentence. The defendant argued on appeal that the trial court was limited to substituting imposition for execution and that the court could not increase his sentence. We affirmed for three reasons: (1) defense counsel agreed that resentencing, following the hearing, could be based on the full range of punishment; (2) a sentence is an indivisible totality; and (3) the remand was for resentencing and not for the limited purpose of substituting “imposition”for “execution.”

In the instant case, Reeves has never acceded to complete resentencing but has only urged the elimination of the exile condition. In addition, we are dealing here with a valid sentence of seven years’ probation with that probation being subject to three conditions. One of those conditions is illegal, but the other two dealing with mental health counseling and prohibition against any contact with the victim or the victim’s family are proper. Modifying a condition of probation is specifically contemplated under § 5-4-306(b), and in this case the trial court abused its discretion in refusing to strike the illegal condition. Under these circumstances, we do not view Meadows v. State, supra, as controlling.

We remand this matter with instructions to strike the exile condition of probation. The trial court, of course, may impose additional conditions of probation, fines, or confinement in a local facility during the period of probation as authorized by Ark. Code Ann. § 5-4-306(b) (Supp. 1999).

Reversed and remanded.

       The judgment and disposition order also made reference to a suspended sentence, but that issue is not before us in this appeal.