author: David Newbern, Justice. John I. Purtle, Justice,

text:
    Teddy Wayne GRAHAM v. STATE of Arkansas
    CR 88-54
    757 S.W.2d 538
    Supreme Court of Arkansas
    Opinion delivered October 3, 1988
    [Rehearing denied October 31, 1988.]

      James R. Marschewski, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.

       Purtle, J., would grant rehearing.

   David Newbern, Justice.

The appellant, Teddy Wayne Graham, was convicted of aggravated robbery and of being a felon in possession of a firearm. He contends the trial court erred in permitting the victim of the crime to identify him at the trial, given her identification of another person as the culprit in a pretrial photo lineup in which Graham’s picture appeared, and of yet another person in a pre-trial stand up lineup. He also contends a mistrial should have been granted when a witness who had been excluded from the courtroom during the testimony of other witnesses repeatedly looked into the courtroom and then gave unanticipated testimony that he recognized Graham as the driver of a car leaving the victim’s residence near the time the crime occurred. His final contention is that he was improperly denied a transcript of pre-trial proceedings for use at the trial. We find no merit in these contentions and affirm.

Linda Sosebee entered her home around 2:00 p.m. on June 30, 1986, and was confronted by a person pointing a gun at her and holding a cloth over the lower portion of his face. The house had been ransacked. The gunman told her to move to the rear of the house. She ultimately went into a bathroom and locked the door. Apparently the gunman left the premises, and Sosebee called the police who arrived sometime shortly thereafter. There was conflicting police testimony about the lighting conditions in the house. One officer said he had to use a flashlight to see in the hallway where the confrontation had occurred. Another said he could see well enough without turning on lights.

Just after the event, Ms. Sosebee told officers she was unsure whether she could identify her assailant. She gave a physical description of him which matches the description of Graham. On July 8,1986, an officer came to her home and showed Ms. Sosebee a photo lineup which included a picture of Graham taken three years earlier with his eyes closed. She was unable to make a positive identification, but she selected the photograph of a person other than Graham as the one most resembling the robber.

On August 5,1986, Ms. Sosebee was presented with a live or “stand up” lineup at police headquarters. Graham was not in the lineup. An officer conducting the lineup testified he told Sosebee not to make any identification unless she was positive. On the form given to her for identification she marked the lineup number of one of the participants. At the trial, she testified she did not intend a definite identification, but rather to choose a person most resembling the robber. She said she made her choice because the person selected had tatoos. This testimony was corroborated by an officer who was present. He said Ms. Sosebee told him she made her selection because she remembered tatoos on her assailant, and she did not intend a positive identification of anyone in the lineup.

On August 14,1986, Officer Thomas made a photograph of Graham which he later presented to Ms. Sosebee along with others. He had covered the lower portions of the faces to simulate the appearance of the assailant as Ms. Sosebee saw him. She positively identified Graham as the robber. At trial, she again positively identified Graham as the person she had confronted in her home.

1. Identification reliability

In support of his contention that Ms. Sosebee’s identification of him should have been suppressed, Graham cites Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976). There, however, the witness identified a photograph of the appellant in a photo lineup, but at a suppression hearing he was unable to identify the appellant. All the photographs shown to the witness were in black and white except the one of the appellant which was in color. Each photograph showed a date, the one of the appellant being the most recent. In addition, the witness insisted the person he had seen running from the scene of an attempted burglary had blond hair. He made his identification of the person in the photograph on the basis of blond hair. The appellant, as he appeared at the hearing, had brown hair. At the trial some three days later, the witness said the person he saw at the crime scene had hair that was “blondish brown, brown, dark.” 260 Ark. at 760, 543 S.W.2d at 936.

Our opinion recognized that only when procedures leading to an identification are so defective as to undermine reliability should the question whether an in-court identification will be permitted become one of law to be taken from the jury. We found the witness’s testimony to be that unreliable not only because of the factors making the photograph of the appellant unique among those from which the witness selected, but because of his complete reliance on hair color (which seemed to vary) and his total inability to identify the appellant face to face. Obviously, the case is not like the one before us now.

Here there is no allegation of police misconduct. The only allegation of suggestiveness in the photo lineup from which Graham’s picture was identified is that its background is somewhat lighter than those in the other pictures. The only contention which gives us some concern is Ms. Sosebee’s selection of other persons in the first two lineups prior to her selection of Graham in the third lineup and her positive identification of him at the trial.

To determine whether a proposed in-court identification should be suppressed as unreliable, the Supreme Court has used the following criteria:

the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between the pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and lapse of time between the alleged act and the lineup identification. [United States v. Wade, 388 U.S. 218, 241 (1967)].

We consider the same factors. Cook v. State, 283 Ark. 246, 675 S.W.2d 366 (1984); Fountain v. State, 273 Ark. 457, 620 S.W.2d 936 (1981). The question is one of mixed law and fact, and thus we do not reverse the trial court’s decision unless we find it to have been clearly erroneous. Cook v. State, supra; Glover v. State, 276 Ark. 253, 633 S.W.2d 706 (1982).

We cannot say the trial court’s decision was clearly erroneous. The tenuous nature of the misidentifications in the first two lineups reduces their significance. The lapse of time between Ms. Sosebee’s confrontation with the robber and her identification of Graham was short. While some doubt was induced about her ability to see him and the duration of her opportunity to observe him, she testified that the thirty seconds or so she stood in his presence in her home seemed like a long time, and her identification at the trial was definite and unshaken by cross-examination.

2. The other witness

Jerry Schaffer was called by the prosecution. His anticipated testimony was that he had seen a particular type of car, similar to a car owned by Graham, leave the Sosebee residence on the day of the robbery. The witnesses were excluded from the courtroom pursuant to A.R.E. 615. During a recess the prosecutor was informed that Schaffer could identify Graham as the person he had seen driving the car. When Schaffer took the witness stand, he testified he had seen the man driving the car and he was in the courtroom. Graham’s counsel objected and moved for a mistrial. The judge held a voir dire of the witness at which it was determined that, while waiting to testify, Schaffer had peeped into the courtroom some 20 or 25 times, and it had come to him that Graham was the driver despite Schaffer’s earlier statement that he would be unable to identify the driver but could identify the car if he were to see it again.

By allowing voir dire of Schaffer, the trial court permitted Graham’s counsel to expose thoroughly to the jury the means by which Schaffer had come to his identification testimony. It was not improper to deny the motion for a mistrial. Despite the possible violation, in spirit at least, of Rule 615 the court was correct to permit the testimony. Even if there has been a clear violation of the rule, the trial court has the option of permitting comment on the witness’s violation of the rule in order to reflect on his credibility. Blaylock v. Strecker, 291 Ark. 340, 724 S.W.2d 470 (1987). That was the effect of permitting voir dire of the witness, and we find no error.

3. The pre-trial hearing transcript

Graham filed a motion to have a transcript of the suppression hearing made available to him before his trial. The motion stated only that he planned to introduce the transcript as evidence, and that he needed to review the transcript or otherwise be hampered in his defense by his inability to remember what the witnesses had said at the hearing. Graham’s counsel argued the motion by saying that “some of the witnesses may not say the same thing at the trial that they said at the hearing,” and the transcript was needed for impeachment purposes. He mentioned the police officers who had testified and Ms. Sosebee who, he said, “may say something different than was said in the hearing.”

We agree that a defendant may be entitled to such a transcript if he can demonstrate it is needed for an effective defense. Britt v. North Carolina, 404 U.S. 226 (1971). However, we have clearly held that a general allegation that it might be used for impeachment purposes is an insufficient basis for requiring that such a motion be granted. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988).

Conclusion

This has not been an easy case to decide. But for Ms. Sosebee’s corroborated testimony that her intentions were not to make positive identifications in the first two lineups, it might have gone the other way. Nor do we take lightly the problem with Schaffer’s testimony. The dissenting opinion narrates the facts as a good defendant’s advocate might relate them to a jury; it states them most favorably to the appellant. Our obligation, however, is to view the evidence most favorably to the position of the appellee. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987); Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986); Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986); Westbrook v. State, 286 Ark. 192, 691 S.W.2d 123 (1985); Mason v. State, 285 Ark. 479, 688 S.W.2d 299 (1985).

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Additional facts should be stated in order to have a comprehensive understanding of this case. There is no doubt whatsoever Ms. Sosebee’s home was burglarized by someone and that she was terrorized by that same individual. However, the individual who committed these acts is the one who should be punished, not someone who happens to look a lot like him.

One officer who investigated this crime stated that the hallway, where Ms. Sosebee encountered the intruder, was so dark at midafternoon that he had to use his flashlight to get around. Admittedly the victim did not get a good look at her assailant; shortly after the crime she told officers that she probably couldn’t identify him because he had a cloth over the lower part of his face. She did say that he was a white male in his mid-twenties, about five feet eight inches tall with brown hair, and wearing faded bluejeans and a light colored shirt. (This description no doubt fits many persons.) Understandably, the victim was looking at the gun, not her assailant’s face, as she went down the hallway. Although he was holding a cloth or handkerchief over the lower part of his face with his left hand, she did not see the name “Ted” tatooed across his fingers.

The first photographic lineup was held eight days after the crime. The victim identified the number six photograph as the robber. This photograph was of one Scott Middleton. The appellant’s photograph was number three in that same lineup. However, the victim did not identify the appellant as her assailant.

Sometime later a standup lineup was conducted and the victim indicated an individual in the number two spot looked the most like her assailant. The individual she identified was one Kenneth Newell. In fact the appellant was not even in that lineup. At that time the police suspected Terry Nichols was the thief in this case. It was Nichols’ car which had been seen in the neighborhood, and several of the items stolen from the house were found in his car.

When the third attempt at identification came around on August 15,1987, the victim picked out the appellant. By this time she had learned that Ted Graham was the one the police suspected of the crime. Meantime, it had been determined that the appellant had a tatoo not only across his left hand but on his right arm. At this lineup, the appellant was not wearing a shirt and his hair was longer than any of the others.

By the time the victim got to trial and saw the appellant seated at counsel’s table, there was no way on earth she could keep from identifying him, no matter how hard she tried to be unbiased by her previous misidentification of the appellant. By this time this man had become fixed in her mind as the person who had committed the crime. From the evidence presented I believe that she would have identified Nichols as her assailant if he had been the accused.

The second prejudicial error was allowing witness Schaffer to identify the appellant as the person he had seen in that neighborhood the day of the crime. Schaffer had reported a suspicious-looking car about a block from the home of the victim on the afternoon the crime was committed. He had described a person fitting the general description of Nichols and had told the police that the man driving the car had a beard. On this same date the victim had told the police that the person who committed the crime did not have a beard. By the time of trial, the appellant had grown a beard. Schaffer was excluded from the room during the trial but admittedly “peeped” into the courtroom some twenty to twenty-five times. He saw a person seated at the table with defense counsel and no doubt had no trouble convincing himself that the accused was indeed the man he had seen in the neighborhood the day of the crime. The fact that the accused was of the same general build as the person he had seen, and by the time of trial had a beard, made it all the easier for this witness to convince himself of the correctness of his identification. Aside from the fact that this witness mistakenly identified the accused as the man he had seen on the afternoon of the crime, Schaffer, like the other witnesses at the trial, was under “the rule,” and clearly violated the instruction of the court by “peeping” into the courtroom before he was called.

Whether we continue to review identification cases utilizing the standard “totality of the circumstances” or “clearly erroneous” or both, as we sometimes do, this case should be remanded for a new trial.

In Frensly v. State, 291 Ark. 268, 724 S.W.2d 165 (1987), we stated: “Finally, the totality of the circumstances shows that the lineup was not unduly suggestive.” After discussing the discrepancies and weaknesses of the identification procedure in the trial court, we further stated: “These credibility factors, when considered in the totality of the circumstances, are not sufficient to make the trial court’s ruling clearly erroneous.”

Apparently the majority holds that appellate courts do not consider the totality of the circumstances when deciding this issue on appeal. If so, we should make it clear that we do not. It seems to me to be a ready made excuse for appellate courts to avoid ruling on the hard facts and law of a particular case. If prejudicial error has occurred we ought to remand a case for a fair trial. If not, we ought to say why and not evade the issue by stating that the “totality of the circumstances” require us to affirm or reverse the case. The phrase, it seems to me, sometimes is the reason given for stopping short of giving full effect to the law as it is written.

It is true, as the majority states, that I have stated the case in the terms of a defense lawyer. However, the majority has admittedly stated the facts from the view of a prosecutor. We should do neither. We should review the case from a perspective which will further the administration of justice and insure the statutory and constitutional rights of both the state and the accused. There should be a balancing process, giving due regard to the rights of all parties.


source: Caselaw Access Project

author: Tom Glaze,

license: Public Domain

text:
    The ESTATE OF Virgie HASTINGS v. PLANTERS AND STOCKMEN BANK
    88-97
    757 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered October 3, 1988
    [Rehearing denied October 31, 1988.]

      Stripling & Morgan, by: Dan Stripling, for appellant.

      Murrey L. Grider, for appellee.
   Tom Glaze,

Justice. Appellee, Planters and Stockmen Bank, obtained a summary judgment based upon a number of promissory notes, all of which were executed by Richard and Laveda Hastings, and at least two or three of which were signed either by Dorothy Hastings or Virgie Hastings, the appellant. Appellant had assigned, as security for most or all of the aforementioned indebtedness, all of her interest in a note in the amount of $256,000.00 due her from Louis Ahrent. After the Hastingses defaulted on their notes, appellee filed this suit, seeking judgment against Richard, Laveda and Dorothy Hastings in the sum of $117,555.20, judgment against Richard and Laveda Hastings in the amount of $208,088.13 and judgment against Richard, Laveda and appellant in the amount of $142,626.29. Appellant, by her guardian, answered denying she owed any indebtedness to appellee and claiming her signatures on the note(s) and on the assignment of the Ahrent note given appellee were secured by fraud and undue influence at a time when she lacked the mental capacity to transact business.

The appellee moved for summary judgment and the trial court, after considering affidavits and requests for admissions, which drew no response, granted appellee’s motion and awarded judgments against Richard, Laveda and Dorothy Hastings. As to appellant, the court’s judgment merely provided that, after crediting the amount of the Ahrent note against appellant’s indebtedness, appellant was no longer indebted to the appellee.

Approximately sixteen months later, appellant, by her guardian and new counsel, amended her counterclaim and initiated discovery in order to defend against appellee’s complaint against her. Appellee objected to appellant’s actions as being untimely and argued the trial court’s earlier summary judgment had disposed of all issues raised in the litigation. Appellant responded that the court’s judgment was not final, in that it did not dispose of the issues raised between the appellant and appellee or conclude their litigation. The trial court rejected the appellant’s arguments, and entered an order denying appellant’s request for discovery. Appellant then brought this appeal, and the sole issue here is whether the trial court’s summary judgment was a final order that concluded the litigation between the appellant and appellee.

In support of her contention that the lower court’s summary judgment was not final, appellant argues that no judgment amount was ever obtained against her and that her allegations of fraud and mental incompetency were never addressed. Instead, the appellee obtained a summary judgment that awarded judgments against the other parties, but as to appellant merely provided that the appellant, after crediting her indebtedness to appellee by the amount of the Ahrent note, was not indebted to appellee.

Appellee argues that the summary judgment was sufficiently final as to the appellant since it ordered that “all of the security interests set forth in [its] complaint” is vested in the appellee. Appellee argues further that the appellant never responded to its motion for summary judgment and made no appearance on the motion, and that she should therefore be precluded from questioning the summary judgment sixteen months after it was entered. Because we conclude the summary judgment was not a final order, we find appellee’s argument unpersuasive.

In most cases, the question of what constitutes a final order arises in the context of Ark. R. App. P. 2, which usually involves the issue concerning whether an order is appealable. To be final and appealable, we have said that a trial court’s order, decree or judgment must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988).

In an earlier case, this court, in discussing the formal requirements of a judgment, had an opportunity to decide the required finality that a judgment must impart to the parties. See Thomas v. McElroy, 243 Ark. 465, 420 S.W.2d 530 (1967). There, McElroy brought suit against Thomas and another defendant for past due rent. After hearing testimony offered by the parties, the court entered an order labeled “Decree,” which reflected the following: (1) a contract relationship existed under which Thomas owed $40.00 per month during the period of December 9, 1963, until July 8, 1965; (2) the contractual relationship terminated “as of this date;” (3) Thomas was permitted to remove certain personal property from the leased property; and (4) Thomas’s co-defendant was dismissed from the action. About one year after the court’s “Decree,” the trial court entered another instrument in the same action captioned “Judgment on Decree,” which specifically reduced judgment against Thomas in the amount of $760.00 plus interest and noted that garnishment and execution may issue. On appeal, Thomas contended the earlier “Decree” was a final one and the trial court had no authority to modify it one year later by entering another judgment. This court rejected Thomas’s argument, and held that the earlier decree was neither a judgment nor a final order.

In Thomas, this court discussed the formal requirements of a judgment, noting that a judgment is the final determination of the rights of parties in an action. In citing Arkansas statutory law, the court further said that the amount of the judgment must be computed, as near as may be, in dollars and cents and that the judgment must specify clearly the relief granted or other determination of the action. Id. The court also related the rule that a final judgment or decision is one that finally adjudicated the rights of the parties, putting it beyond the power of the court which made it to place the parties in their original positions. It must be such a final determination as may be enforced by execution or in some other appropriate manner. Id.

In reviewing the trial court’s summary judgment, we find it fails to reflect any judgment against the appellant, nor does it specify in dollars and cents what she owed the appellee. The judgment certainly makes no mention of the fraud and undue influence issue raised by the appellant and neither do the affidavits, requests for admissions and other documents submitted by the appellee in its motion for summary judgment. In stark contrast to the minimal manner in which the court’s summary judgment touches on appellee’s rights against the appellant, that same judgment specifies that the appellee possessed unanswered requests for admissions that had been addressed to Richard, Laveda and Dorothy Hastings and it further sets out the exact amounts owed by those defendants and reduced those amounts to judgments. The summary judgment also provided that execution may issue upon those judgments.

As we have previously mentioned, the appellee attempted to make its case against the appellant by summary judgment motion, and by doing so, it clearly had the burden to show that there was no issue of fact and that the appellee, as the movant, was entitled to the judgment. See Hinkle v. Perry, 296 Ark. 114, 752 S.W.2d 267 (1988). From our review of the record, including the documents submitted with appellee’s motion for summary judgment, we cannot conclude that appellee made a prima facie showing of entitlement to a judgment. But, just as important, we hold that the summary judgment entered below was clearly deficient as a judgment and final determination of the rights of the appellant and appellee. Furthermore, the judgment did not dismiss or discharge the appellant from the action.

In accordance with this court’s views set forth above, we reverse and remand this cause for further proceedings.

       No requests for admissions were proposed to the appellant.

       Appellee pled laches, an equitable argument, but that issue is not reflected in the record as having been presented to the trial court.

       The appellee’s complaint prayed for a judgment against each defendant, including the appellant.


author: Jack Holt, Jr., Chief Justice. David Newbern, Justice, Steele Hays, Justice,

text:
    Jennifer Gaye LINDER, a Minor, by and through Her Parents, Perry L. Linder and Mavis Linder v. Dan HOWARD and Travis Howard
    88-75
    757 S.W.2d 549
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Darryl Graves, for appellant.

      Matthews, Sanders, Liles & Sayes, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from a judgment dismissing appellant Jennifer Linder’s suit on the grounds that it was barred by the statute of limitations. Linder contends that the court erred in dismissing her claim because the case had been transferred from chancery court where it had been inadvertently but timely filed. The appellees, Dan Howard and Travis Howard, respond that the trial court was correct in dismissing the suit and also request that we affirm in light of Linder’s failure to adhere to the proscriptions of Rule 9 of the Rules of the Supreme Court and the Court of Appeals.

While Linder’s abstract falls considerably short of the requirements of Rule 9, it is not “flagrantly” deficient. Rule 9(e)(2). Because Linder’s suit was filed in chancery court before expiration of the applicable limitations period, and because the chancery court was directed by statute to transfer the action to the proper forum, i.e., circuit court, the circuit court judge erred in dismissing the suit. Accordingly, the judgment is reversed and the cause remanded for trial.

The underlying action arose out of an automobile accident occurring on May 17,1983. Linder was seventeen years old at the time of the accident and turned eighteen on October 15, 1983. Pursuant to Ark. Code Ann. §§ 9-25-101 and 16-56-116 (1987), Linder had until October 15,1986, to file an action in connection with her injuries from the automobile accident. Linder’s complaint was filed in chancery court on October 14, 1986. Subsequently, after the limitations period had expired, Linder filed a motion in chancery court which acknowledged that the suit had not been filed in the proper forum and requested that the case be transferred to circuit court. The Howards responded with a motion to dismiss.

On February 25,1987, the chancellor transferred the case to circuit court — presumably pursuant to the provisions of Ark. Code Ann. §§ 16-13-401 and 16-57-104(a) (1987). Section 16-57-104(a) provides:

An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings, and a transfer of the action to the proper docket.

Upon transfer of the case, the Howards filed an answer in circuit court which raised the statute of limitations issue and requested that the suit be dismissed. A motion for summary judgment filed on identical grounds was granted by the circuit court which relied upon our decision in Erwin, Inc. v. Arkansas Louisiana Gas Co., 261 Ark. 537, 550 S.W.2d 174 (1977).

In Erwin we held that the proper commencement of an action tolls the running of the statute of limitations. Rule 3 of the Arkansas Rules of Civil Procedure provides that a civil action is commenced by filing a complaint with the clerk of the proper court, and the reporter’s note to Rule 3 states that the term “proper court” means one which has jurisdiction of the subject matter. Here, the trial judge determined that the filing of Linder’s suit in chancery court did not constitute the “proper” commencement of an action so as to toll the statute of limitations. Because the applicable limitations period had expired prior to the transfer to circuit court, the trial judge concluded that the suit was barred. We disagree.

The parties do not dispute the propriety of a transfer from chancery to circuit court in cases where a plaintiff has filed in the wrong forum. In fact, we have held that a motion to dismiss by the defendant in such cases should be treated by the court as a motion to transfer. Meeks v. Arkansas Light & Power Co., 147 Ark. 232, 227 S.W. 405 (1921). The crux of this appeal is the effect to be given to section 16-57-104(a), the transfer statute, when an action has been timely filed in the wrong forum and transfer of the case to the proper court necessarily occurs after the running of the limitations period.

We adhere to our language in Erwin, supra, that the proper commencement of an action tolls the running of the statute of limitations. In other jurisdictions, the corollary of our position in Erwin is that the commencement of an action in a court which lacks jurisdiction will not toll the statute of limitations. Star-Kist Foods v. Chicago, Rock Island & Pacific Railroad Co., 586 F. Supp. 252 (N.D.Ill. 1984). However, as noted in Star-Kist Foods (citing Herb v. Pitcarin, 324 U.S. 117 [1944]), there is an exception. When the court lacking subject matter jurisdiction has, by statute, authority to transfer the action to a court of competent jurisdiction, timely filing of the suit in the first court tolls the statute.

In Phillips v. Catts, 220 Ala. 332, 124 So. 884 (1929), the Alabama court in a well reasoned opinion dealt with the same issue and a code provision similar to section 16-57-104(a). The court found:

Defendant, appellant, takes the position that the filing of the bill in chancery, though for the same cause of action, did not interrupt the running of the statute of limitation. Defendant is in error as to this. The real and only reason for the enactment of section 6486 of the Code [the transfer statute], to which we have referred above, was to intercept the running of the statute in the event the plaintiff, misconceiving his remedy, brings his action in the wrong forum, that is, sues in equity, whereas an action at law would be proper and necessary, or vice versa.

The same is true in this case. The General Assembly’s obvious intent in enacting section 16-57-104(a) is that a plaintiffs error in filing proceedings in an improper court should be corrected merely by transferring the proceedings to the proper court. The statute clearly expresses that such an error or mistake on the plaintiffs part should not cause his or her action to abate or be dismissed. Pursuant to section 16-57-104(a) the chancery court had the authority and the duty to transfer Linder’s suit to circuit court. The filing of the action in chancery court — albeit in the wrong forum — was timely and served to intercept and toll the statute of limitations.

Section 16-57-104(a) is compatible with Arkansas’s savings statute, Ark. Code Ann. § 16-56-126 (1987), which we recently discussed in Carton v. Missouri Pacific Railroad Co., 295 Ark. 126, 747 S.W.2d 93 (1988). Section 16-56-126, in part, provides:

If any action is commenced within the time respectively prescribed in this act, in §§ 16-116-101 — 16-116-107, in §§ 16-114-201 — 16-114-209, or in any other act, and the plaintiff therein suffers a nonsuit, or after a verdict for him the judgment is arrested, or after judgment for him the judgment is reversed on appeal or writ of error, the plaintiff may commence a new action within one (1) year after the nonsuit suffered or judgment arrested or reversed. [Emphasis ours.]

In Carton, we held that section 16-56-126 permits a plaintiff who commences a suit within the applicable statute of limitations, which suit is subsequently dismissed for lack of subject matter jurisdiction, to refile the action within the period of the “savings statute.” While Carton involved a nonsuit, we noted that for the purposes of the savings statute a dismissal on defendant’s motion is the same as a nonsuit. The only difference between Carton and the present case is that here the chancery court transferred the action to circuit court — the proper forum. In Carton, the plaintiff nonsuited her tort action in federal court, which had no subject matter jurisdiction, and later refiled her action in the state court, which did have subject matter jurisdiction.

If we were to accept the appellees’ arguments as concerns the holding in Erwin and the language of Rule 3, we would be required to hold that a plaintiff’s action would be barred if the court which had no jurisdiction transferred the proceeding to the proper court as mandated by section 16-57-104(a); whereas if the court dismissed plaintiff’s action for want of jurisdiction, or plaintiff nonsuited for the same reason, plaintiff could avail himself of the savings statute which permits him one year to commence a new action. Obviously, such an inconsistency cannot prevail. Savings statutes and provisions that provide for transfers between our chancery and circuit courts are remedial in nature. They reflect the legislature’s intent to protect those who, although having filed an action in good faith and in a timely manner, would suffer a complete loss of relief on the merits because of a procedural defect.

Rule 3 provides for the commencement of an action and contemplates the filing of a suit in the court of proper jurisdiction; section 16-57-104(a) provides for a fair and just remedy, i.e., transfer, when the suit has been commenced in the wrong court, and the fact that a particular limitations period expires after filing of the suit but before completion of the transfer process should not be viewed in a manner which would elevate the form of Rule 3 over the substance of section 16-57-104(a). In light of the foregoing, we find that the circuit court erred in granting the motion for summary judgment.

Reversed and remanded.

Newbern, J., concurs.

Hays, J., dissents.

David Newbern, Justice,

concurring. The complaint in this case alleged injury in an automobile accident which occurred May 27, 1983. The plaintiff was a minor when the accident occurred, so she had three years from the time of reaching majority to file her complaint. She alleges that she had until October 14, 1986, to file, and that is the date on which the complaint was filed. Having waited until the last possible filing date, she filed her complaint for personal injury in the chancery court. Her statement of the case on appeal is that the complaint was “inadvertently” filed in the chancery court.

Sometimes cases have both legal and equitable aspects and it is difficult to know whether to begin in the chancery or circuit court. This was not such a case. The lawyer who filed this case must have known it belonged in the circuit court. The thought that it was filed in the chancery court merely for the purpose of further delay is inescapable. However, if we were to hold that the statute of limitations prevents the circuit court from considering the case after transfer, we would be imposing a rule which we would have to apply in all cases, including those where there could be a legitimate question where the case should be filed. While my sentiment is with Justice Hays’s dissenting opinion, I must concur with the majority.

If we are ever to put an end to this gamesmanship, we must amend our Constitution and unify our court system.

Steele Hays, Justice,

dissenting. The appellant was a minor when her cause of action arose. Her minority was extinguished on October 15,1983 and pursuant to Ark. Code Ann. § 9-25-101 and § 16-56-116 (1987), appellant had until October 15, 1986, to commence an action. Her complaint was filed one day before the running of the statute of limitations, i.e. October 14, 1986, in chancery court.

The appellant sought money damages for injuries resulting from an automobile accident, and, clearly, filing in the chancery court was improper. Moreover, a motion to transfer the case from law to equity pursuant to Ark. Code Ann. § 16-13-401 (1987), was not filed until October 30, 1986, over two weeks after the statute of limitations had expired. On February 25,1987, the case was transferred to circuit court.

On December 18, 1978, the Arkansas Supreme Court adopted the Rules of Civil Procedure (with modifications) as submitted by the Civil Procedure Revision Committee. Among the newly adopted rules was A.R.C.P. Rule 3, which provides that “a civil action is commenced by filing a complaint with the clerk of the proper court who shall note thereon the date and precise time of filing.” The Reporter’s Notes to Rule 3 clearly define ‘proper court’ as one which has jurisdiction of the subject matter and the parties described in the complaint and in which venue is proper. Therefore, in order to commence a civil suit, and thus to toll the statute of limitations, one must file with the proper court.

It is interesting to note the language of an article authored by the Reporter to the Civil Procedure Revision Committee and a committee member, commenting on Rule 3:

One can imagine a case being filed the day before the running of the statute of limitations in a court that is not the proper court, and thus the plaintiff would be held not to have complied with the statute of limitations because he failed to commence the action before the statute had run. This may cause lawyers to have second thoughts about filing questionable cases in courts of chancery or circuit courts in Arkansas where the matter of propriety may be crucial. It certainly should put an end to whatever practice there may have been of filing cases in the wrong court close to the time the statute of limitations was to run in order to get a delay beyond the expiration period of that statute.

Cox and Newbern, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 1 (1979).

Even before the adoption of Rule 3, Arkansas case law held that the proper commencement of an action tolls the running of the statute of limitations. Erwin, Inc. v. Arkansas Louisiana Gas Co., 261 Ark. 537, 550 S.W.2d 174 (1977). So now under Rule 3 it seems clear that proper commencement means filing with the proper court, and only with “proper” commencement is the statute of limitations tolled.

Even if such a procedure were not so clear, there is another ground upon which to uphold this dismissal of the appellant’s suit by the trial court. Pursuant to Ark. Code Ann. § 16-11-302 (1987), the Supreme Court maintains exclusive power over the rules of practice and procedure in civil cases and no legislative approval is required. Therefore, it would seem that A.R.C.P. Rule 3 would take precedence over any legislatively enacted procedural rules which may conflict with Rule 3, such as Ark. Code Ann. §§ 16-57-104 and 16-13-401 (1987). These statutes can easily be read consistent with Rule 3 by reading in what was so obviously intended — that an error in the kind of proceedings requires a transfer of the action to the proper docket rather than dismissal or abatement of the action provided that the statute of limitations has not yet run. However, the majority in this case dealing with pure state common law, advocates allowing Ark. Code Ann. § 16-57-104(a) (1987) to prevail over the clear language of A.R.C.P. Rule 3.

The majority now adopts an exception to the rule in Erwin, supra, that proper commencement of an action tolls the running of the statute of limitations. The majority relies on Star-Kist Foods v. Chicago, Rock Island & Pacific Railroad Co., 586 F. Supp. 252 (N.D.Ill. 1984), which cites Herb v. Pitcarin, 324 U.S. 117 (1944), in carving out this exception. The exception basically provides that when a court lacks subject matter jurisdiction but by statute it has the authority to transfer the action to a court of competent jurisdiction, the filing of the first suit (i.e. the suit filed in a court without subject matter jurisdiction) tolls the statute of limitations. Applying the exception to the facts of this case would allow the appellant who filed in chancery court to transfer her case to the proper docket under Ark. Code Ann. § 16-57-104(a) (1987), and the statute of limitations would have been tolled by her October 14, 1986, filing.

The exception created by the court in Herb, and applied in Star-Kist, is inapplicable to the case before this court. Both Herb and Star-Kist dealt with causes of action arising from federal statutes. Star-Kist involved recovery for damages for goods in transit under the Carmack Amendment, while Herb interpreted § 6 of the Federal Employers’ Liability Act (FELA).

In Herb, the plaintiff filed in a Granite City, Illinois city court for recovery under § 6. The city court granted relief to the plaintiff, yet the appellate court reversed and remanded the case. In the meantime, the Illinois Supreme Court ruled that city courts did not have jurisdiction to hear § 6 FELA cases. The plaintiff, whose case was pending for retrial, then made a change of venue motion. This motion occurred more than two years from the day of injury. Section 6 provided that an action must be commenced within two years from the date of the injury. It seems clear that in order to protect this federally created substantive right, and not to penalize the plaintiff for the procedural delays occasioned by the subsequent Illinois Supreme Court decision, an exception to the tolling of the statute of limitations was necessary.

In the case before this court no federal cause of action exists. The case is a standard common law negligence suit. Federal law plays no part in this lawsuit, and thus the desire to protect a federal cause of action by granting an exception to state law is not present. Furthermore, the procedural facts in this case are quite unlike those in Herb.

The majority cites Phillips v. Catts, 220 Ala. 332, 124 So. 884 (1929), an Alabama case interpreting an Alabama statute similar to Ark. Code Ann. § 16-57-104(a) (1987). Alabama authority certainly has no precedential value for this court. The Alabama court determined that the Alabama legislative history behind their Code provision was to intercept the running of the statute of limitations. However, Arkansas’s legislative rationale is not quite so clear, and Arkansas rationale need not follow that of Alabama. Upon closer examination, the Alabama statute seems more limited than the majority presents. In Phillips the court stated that the Code “was to intercept the running of the statute in the event the plaintiff, misconceiving his remedy, brings action in the wrong forum.” (Emphasis added). In the case at bar, even if the Alabama rationale prevailed, there was certainly no misconception as to the plaintiff’s remedy. Unlike in Phillips where a genuine argument was asserted claiming grounds for a suit in a court of equity, no such issue was present in this case.

The case at bar seems to be precisely the situation envisioned by the Cox/Newbern commentary to A.R.C.P. Rule 3.1 believe the trial court correctly read and interpreted our holding in Erwin, Inc. v. Arkansas Louisiana Gas Co., supra, and should be affirmed.


author: Jack Holt, Jr., Chief Justice.

text:
    Allison Thomas PETTIT v. STATE of Arkansas
    CR 88-40
    758 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Paul L. Cherry, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

In 1984 the appellant, Allison Thomas Pettit, committed twelve robberies. He pleaded guilty to five counts of robbery in federal court and was sentenced to eleven years on each count, the sentences to run concurrently. He pleaded guilty in the Circuit Court of Pulaski County, Fourth Division, to seven counts of aggravated robbery and six counts of theft of property. Judge John Langston sentenced him to fifteen years imprisonment on each aggravated robbery count and five years imprisonment on each theft of property count (a total of 135 years), the sentences to run consecutively with each other and concurrently with the federal sentences. Thereafter, he filed a petition in circuit court for post-conviction relief pursuant to Ark. R. Crim. P. 37. After an evidentiary hearing before Judge Jack Lessenberry, his petition was denied. From this order, he appeals.

For reversal he argues that the court erred in (1) finding that his counsel was competent; (2) finding that his guilty pleas were voluntary; and (3) sentencing him to 135 years imprisonment. We find no error and affirm the trial court.

I. COMPETENCY OF COUNSEL.

Pettit contends that his counsel, John Achor, was incompetent in that Achor (1) led him to plead guilty by misrepresenting that certain agreements had been made with the State and Judge Langston; (2) failed to provide the sentencing court with mitigating evidence; (3) failed to investigate a known medical defense; and (4) failed to move to quash Pettit’s confession. We disagree.

A petitioner has the burden of overcoming the strong presumption that his counsel was competent. Hudson v. State, 294 Ark. 148, 741 S.W.2d 253 (1987). To prove ineffective assistance of counsel, a petitioner must show (1) that his attorney made so serious an error that he was not functioning as the “counsel” guaranteed by the sixth amendment and (2) that his counsel’s deficient performance was so prejudicial as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668 (1984). Pennington v. State, 294 Ark. 185, 741 S.W.2d 266 (1987). In order to satisfy the prejudice requirement, a defendant who pleads guilty must demonstrate that but for counsel’s errors he would not have done so. Hill v. Lockhart, 474 U.S. 52 (1985); Hudson, supra; Jones v. State, 288 Ark. 375, 705 S.W.2d 874 (1986). As we stated in Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984), “[a] defendant whose conviction is based upon a plea of guilty normally will have difficulty proving any prejudice since his plea rests upon his admission in open court that he did the act with which he is charged.”

Pettit alleges that his counsel, John Achor, misled him to believe that arrangements were made with the State and Judge Langston pursuant to which Pettit would receive a maximum sentence of twenty years imprisonment on all charges. As noted above, the trial judge sentenced him to 135 years imprisonment. He asserts that he would not have pleaded guilty but for counsel’s misrepresentation.

In examining the record we find that Judge Langston conducted a plea hearing on January 15,1985, and a sentencing hearing on April 8, 1985. During the course of the plea hearing, Achor advised the trial court that the State had agreed to permit him to defer Pettit’s sentencing until after Pettit had been sentenced in federal court on similar charges. Such practice is not unusual. It is somewhat common for attorneys who represent clients who are subject to both federal and state charges to expedite pleas of guilty to the federal charges so that their client will be sentenced to federal imprisonment rather than state confinement.

This game plan was approved by the trial court, and it later ran the state sentences concurrently with the federal sentences. Otherwise, there were no other agreements between the parties.

At the sentencing hearing, Achor urged the court to consider imposing minimum sentences for Pettit, stressing the terms of Pettit’s federal sentences, and asked the court to consider following the recommendation of the federal judge that Pettit be allowed to enter the federal drug program. The State countered by noting that Pettit deserved some consideration because of his pleas of guilty and his candidness with the court. In addition, the State told the court that it had no objection to Pettit going to the federal penitentiary, however, it could not in good faith suggest that the sentences he got in federal court were appropriate.

At the conclusion of these statements, Judge Langston announced the sentences. Pettit voiced no complaint.

At the Rule 37 hearing before Judge Lessenberry, Judge Langston testified that he did not engage in plea bargaining nor talk with Achor about sentencing. Achor testified that at no time did he tell Pettit that he had prearranged a twenty-year sentence with the State or the judge. In addition, he testified that Pettit fully understood that he could get a life sentence if he pleaded guilty. Moreover, at the plea hearing, the trial judge asked him if he understood that he could receive from ten (10) to forty (40) years or life on each of the aggravated robbery counts and ten (10) years and a $10,000.00 fine on each of the theft counts, the total exposure being up to sixty (60) years in the penitentiary and up to seven life terms plus fines up to $60,000.00. Pettit replied, “Yes, sir.” The plea statements signed by Pettit support these facts.

In denying the Rule 37 petition, the court found that there were no plea negotiations, that Pettit did not rely on any negotiations, that Pettit’s testimony was not credible, and that Achor represented Pettit well throughout the proceedings.

We will not reverse a trial court’s denial of a Rule 37 petition unless its findings are clearly erroneous. Hudson, supra. In view of the testimony by Achor and Judge Langston and the statement by Pettit at the plea hearing that he understood the possible penalties he could receive, we find that the trial court’s findings are not clearly erroneous. Although there was testimony at the Rule 37 hearing by Pettit, his father, father-in-law, and wife that Achor had in effect told them he had prearranged a sentence, Judge Lessenberry was not required to believe these witnesses, especially since they had an interest in the outcome of the proceeding. Id. At a Rule 37 hearing, the credibility of witnesses is for the trial judge to determine. Stephens v. State, 293 Ark. 231, 737 S.W.2d 147 (1987).

Pettit also argues that counsel was incompetent because he failed to provide the court with medical records regarding Pettit’s addiction to drugs, failed to investigate a known medical defense (mental incompetence), and failed to move to quash Pettit’s confession. These allegations are wholly without merit. Pettit has shown neither serious errors nor that he would not have pleaded guilty but for counsel’s alleged errors.

II. VOLUNTARINESS OF GUILTY PLEAS.

A. THE INFLUENCE OF DRUGS.

Appellant argues his guilty pleas were not voluntarily and intelligently entered because he was under the influence of Elavil, a prescribed tranquilizer, on the day of the plea hearing. We hold to the contrary.

At the plea hearing, the following exchange occurred between Pettit and the trial court:

Q. Are you under the influence of any alcohol or narcotic drugs, or have you taken any medication within the last 24 hours?
A. Some Elavil. It’s a tranquilizer.
Q. And how much of it have you taken?
A. Just one little hundred milligram tablet.
Q. Does that in any way affect your mental ability at this time?
A. No, sir.
Q. You fully understand the things that are going on?
A. Yes, sir.
Q. Do you understand why we are here today?
A. Yes, sir.
Q. Do you understand the consequence of pleading guilty as I have explained to you?
A. Yes, sir.

Pettit then pleaded guilty to the crimes.

At the conclusion of the Rule 37 hearing, the court found that although Pettit was taking Elavil, it had no effect on his pleading guilty. This finding is not clearly erroneous. As illustrated in the testimony above, the trial judge thoroughly questioned Pettit concerning the effect of the tranquilizer upon his mental state. Pettit stated without reservation that Elavil was not affecting his mental ability at the time and that he understood what was going on, why he was in court, and the consequences of pleading guilty. Under the circumstances, we are satisfied that the pleas were voluntary.

B. RULE 24.5: PLEA AGREEMENTS.

Pettit also contends that guilty pleas were not voluntary because the trail court failed to determine, pursuant to Ark. R. Crim. P. 24.5, whether the pleas were a result of a plea agreement. We disagree.

Rule 24.5 provides as follows:

The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is a result of a plea agreement. If it is, the court shall require that the agreement be stated. The court shall also address the defendant personally and determine whether any force or threats, apart from a plea agreement, were used to induce the plea.

We have held that it is mandatory under Ark. R. Crim. P. 24.5 that the trial court (1) determine whether the guilty plea was a result of a plea agreement and (2) require that the agreement be stated in court. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980); Marshall v. State, 262 Ark. 726, 561 S.W.2d 76 (1978). See also Zoller v. State, 282 Ark. 380, 669 S.W.2d 434 (1984). The purpose of these requirements is to avoid the chance of a misunderstanding by the accused of the law and his rights. McGee v. State, 262 Ark. 473, 557 S.W.2d 885 (1977).

The evidence in the record and the testimony at the Rule 37 hearing clearly reflect that there was no plea agreement. The only agreement between the State and Pettit’s counsel concerned the priority of the federal sentences, which was at Pettit’s request and to his advantage. Moreover, the record indicates that Pettit understood that his entering of guilty pleas was not pursuant to a plea agreement. First, his counsel testified that Pettit understood that he could receive a life sentence if he pleaded guilty. Secondly, at the plea hearing, Pettit indicated that he understood if he pleaded guilty, he could receive a total sentence of up to sixty years in the penitentiary and up to seven life sentences, plus a fine of up to $60,000.00. If Pettit really believed he was pleading guilty pursuant to a plea agreement by which he would receive only twenty years on all charges, it is obvious he would have spoken up at this time.

Accordingly, we conclude that Pettit fully understood the law and his rights and was not prejudiced by the trial court’s failure to determine whether his guilty pleas were a result of a plea agreement. Under the circumstances, his pleas were voluntary. Reversal is not warranted.

C. CONFESSIONS.

Pettit argues that his pleas of guilty were involuntary because they were simply an extension of his unconstitutional confessions. Since Pettit did not specifically make this argument in his Rule 37 petition or at the Rule 37 hearing, we will not consider it.

III. LENGTH OF SENTENCE.

Pettit argues that the court’s imposition of his sentences subjected him to cruel and unusual punishment in violation of the eighth amendment. His contention is without merit.

As noted previously, the trial court sentenced Pettit to fifteen years imprisonment on each aggravated robbery count and five years imprisonment on each theft of property count, the sentences to run consecutively with each other and concurrently with the federal time.

We have held that the issue of whether a sentence is illegal is cognizable in a Rule 37 petition. Hendrix v. State, 291 Ark. 134, 722 S.W.2d 546 (1987). However, we do not have that issue before us since it is undisputed that Pettit’s sentences are well within the lawful maximum for the crimes committed. Ark. Code Ann. §§ 5-4-401 & 5-4-403 (1987).

Instead, Pettit’s argument is essentially that his sentences are too severe under the facts of his case. The question of whether a legally permissible sentence is too severe under the facts of a particular case is not a matter for consideration by this court in a Rule 37 petition, but instead one which addresses itself to executive clemency. Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979). Thus, we do not consider his argument.

Affirmed.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Charlie CHAFFIN, et al. v. ARKANSAS GAME AND FISH COMMISSION
    88-80
    757 S.W.2d 950
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Wilson, Engstrom, Corum & Dudley, by: Stephen Engstrom, for appellant.

      P. Douglas Mays', and Friday, Eldredge & Clark, by: Michael G. Thompson and Robert S. Shafer, for appellee.
   Darrell Hickman, Justice.

This case is a legal showdown between the Arkansas Game and Fish Commission and the Arkansas legislature. The issues raise fundamental questions about the powers of these respective bodies under the Arkansas Constitution, specifically Amendment 35 which created the Game and Fish Commission.

Three specific questions are before us. First is whether the legislature’s restriction in an appropriation bill, limiting the amount of money the commission may spend on its magazine, violates the separation of powers doctrine and Amendment 35. We hold that it does and affirm the trial court’s decision that § 14 of Act 939 of 1987 is unconstitutional.

The second question is whether the legislature or the Game and Fish Commission has the power to set the maximum amount of money that may be charged an Arkansas resident for the privilege of hunting and fishing in the state. The chancellor held that both the legislature and the commission can set fees for hunting and fishing. We hold that the legislature clearly has the power to set the maximum fees for resident hunting and fishing licenses under Amendment 35 and § 18 of Act 939 as amended by Act 1 is constitutional. In this regard we reverse the chancellor’s decree.

The final question involves the Legislative Council’s practice of reserving the power of “review and advice” in an appropriated bill. We hold this practice is a violation of the separation of powers doctrine and reverse the chancellor’s ruling. Section 17 of Act 939 in that regard is unconstitutional.

BACKGROUND AND FACTS

The suit began with the Game and Fish Commission suing the state treasurer, the state auditor and the director of the Department of Finance and Administration. The commission’s complaint asked that enforcement of certain provisions of Act 939 of 1987 and Act 1 of the First Extraordinary Session of 1987 be enjoined. It also requested a declaration that parts of the acts contain unconstitutional restrictions on the commission’s power. Six members of the general assembly, Senator Charlie Cole Chaffin, Representatives Mike Wilson, John Miller, Jody Mahoney, Ernest Cunningham and Bobby Newman, were permitted to intervene in their official capacities and as members of the Legislative Council, the Joint Budget Committee, taxpayers and licensed hunters and fishermen.

The evidence at the trial showed that the commission began publishing a magazine called “Arkansas Game & Fish” in 1967. No subscription fee is charged for the magazine and no advertising is permitted. According to George Purvis, former director of the commission’s information and education division, the magazine is a valuable tool for wildlife management. He testified that an educated and informed public is essential to a successful program. His testimony was corroborated by the director of the Game and Fish Commission, Steve Wilson.

The commission had budgeted $720,000 to publish the magazine in 1987-1988. An audit commission, formed by the legislature, made a study of the Game and Fish Commission and reported to the legislature that too much money was being spent on the magazine. It was recommended that the commission either allow advertising or a subscription fee. The legislature acted by refusing to appropriate the money and limited expenditures to $450,000 in fiscal year 1988 and $150,000 in fiscal year 1989. A provision was inserted in the act allowing additional funds to be raised through advertising. But an absolute ceiling of $600,000 per year was placed on money spent on the magazine.

Representative Mike Wilson, a member of the Joint Budget Committee that examined the Game and Fish Commission’s budget, testified that the legislature cut the magazine appropriation because other programs of the commission were more important; the legislature did not consider the magazine as essential as other functions of the commission. He conceded the magazine was educational and education was important to wildlife management. But the most essential function of the Game and Fish Commission in his judgment was the regulation and management of game and fish laws and research.

Representative John Miller was chairman of the Legislative Council and chairman of the Joint Budget Committee at the time of this lawsuit. He testified that a commission created by the legislature conducted an audit of the Game and Fish Commission. The report made to the legislature recommended that less money be spent on the magazine so “there would be more money left to purchase land to make provisions for better quantity of game and fish for sportsmen of the state.”

THE GAME AND FISH MAGAZINE ISSUE

The commission argues that Amendment 35 created an independent constitutional agency with the full power of management and control of the state’s wildlife resources and that the legislature has encroached on this right. The legislature argues that Amendment 35 gives it the power to appropriate money and with that power comes the right to decide whether an expenditure is necessary. Both sides readily concede that each has independent, separate powers that must be respected. The commission concedes that it cannot direct the legislature to appropriate money with unfettered discretion. The legislature recognizes that the power of appropriation cannot be used to render the commission unable to perform its “core” functions.

The legislators and the commission cite extreme examples of what could occur should either party abuse its power. The legislators ask what if the commission asks for money to erect a statue of a giant bull frog (a giant duck statue was suggested in oral argument). Is the legislature required to appropriate money? The commission asks what if the legislature “zeros out” the commission’s budget requests and gives it nothing. We do not have these extremes before us. There are remedies available to prevent unreasonable and arbitrary acts by the commission, Arkansas State Game and Fish Comm’n v. Stanley, 260 Ark. 176, 538 S.W.2d 533 (1976), and, of course, we have the power to review legislative acts. We will not dwell upon “what if,” but simply address the questions before us.

Section 14 of Act 939, which deals with the magazine appropriation and is under attack, reads:

Expenditures for the Arkansas Game and Fish Commission magazine shall be limited to $450,000 in fiscal year 1988 and $150,000 in fiscal year 1989 from funds generated through the sale of licenses, permits and fees. Additional funds generated through the sale of advertisements may be used to supplement said funds, but in no event shall the Commission’s total expenditures for the Game and Fish magazine exceed $600,000 per fiscal year.

In striking down this provision of Act 939, the chancellor stated:

. . . [I]t is the Arkansas Game and Fish Commission which must decide how to spend this money to accomplish its designated functions. The magazine is one of the methods utilized by the Commission to accomplish those purposes. If the Commission cannot control the amount of money which is to be spent for its magazine from year to year, then it cannot control whether the magazine will be published at all. Such a result was not intended by Amendment 35 because it would transfer practical control over wildlife regulation and management to the General Assembly.

What power does the Game and Fish Commission have? Amendment 35, adopted in 1944, created the Game and Fish Commission as an independent constitutional agency with the clear power to control, manage, restore, conserve, and regulate the birds, fish, game and wildlife resources of the state. In a line of cases, we have held that the commission has broad discretion in carrying out this purpose. Arkansas State Game and Fish Comm’n v. Stanley, supra; Farris v. Arkansas State Game and Fish Comm’n, 228 Ark. 776, 310 S.W.2d 231 (1958); W. R. Wrape Stave Co. v. Arkansas State Game and Fish Comm’n, 215 Ark. 229, 219 S.W.2d 948 (1949).

In Stanley we had before us the question of whether the commission’s decision to cut timber on one of its wildlife management areas was legal. The trial court held that the commission acted ultra vires (beyond the power), arbitrarily and unlawfully. We reversed the decree and upheld the commission’s actions. In doing so we said:

Decisions in this regard are policy matters vested entirely in the Commission, so long as it acts within limitations which have been imposed on the exercise of its powers. Evidence of abuse of this discretion should be so clear as to be virtually beyond argument before the courts should declare it so. The constitutional amendment left to the Commission the adoption of methods to reach the desired ends. In this respect we must also say that the Commission is substituted for the General Assembly in determining what is in the public interest in the matter of wildlife conservation.... At least when the matter is debatable, it would be beyond our powers to substitute our judgment for theirs.

While Amendment 3 5 gives the legislature the power to appropriate, it does not give the legislature the power to manage the operations of the commission. Arkansas Game & Fish Comm’n v. Edgmon, 218 Ark. 207, 235 S.W.2d 554 (1951). Allocation of resources and establishment of priorities are the essence of management. The commission and the legislature differ on the importance of the magazine to the commission’s function. The commission decided its education and information program is important — the legislature wants the money spent otherwise. In this case the legislature is attempting to assert its control over the commission’s right to make policy decisions. By interfering with this right and power of the commission, the legislature exceeded its constitutional authority.

In Board of Regents of Higher Education v. Judge, 168 Mont. 433, 543 P.2d 1323 (1975), the question was whether certain line item restrictions in a university system appropriation bill infringed on the authority of the board, a constitutional body. The court found:

[T]he legislature cannot do indirectly through the means of line item appropriations and conditions what is impermissible for it to do directly. Line item appropriations become constitutionally impermissible when the authority of the Regents to supervise, coordinate, manage and control the-university system is infringed by legislative control over expenditures.

The appellants point out, however, that art. 5 § 31 of the Arkansas Constitution provides that no appropriation shall be made except for “defraying the necessary expenses of government” and the legislature has the exclusive right to determine what is necessary; in this case the legislature was merely deciding what was necessary. This particular argument was not made below, but we find no conflict between art. 5 § 31 and Amendment 35 in this case. The facts reflect that the legislature is attempting to substitute its judgment for that of the commission on a question of management of resources, something it cannot do. Art. 5 § 31 and Amendment 35 are not irreconcilable. Obviously, Amendment 35 gave the commission more power to act independently than other state agencies that are not independent constitutional agencies.

The appellants argue that the trial court erred in refusing to admit into evidence certain newspaper articles and documents along with the text of a constitutional amendment rejected by the voters in 1942. That was also a proposed amendment creating a Game and Fish Commission. In this case we find no abuse of discretion in the chancellor’s decision disallowing introduction of this material on relevancy grounds. See Lovell v. Democratic Central Committee, 230 Ark. 811, 327 S.W.2d 387 (1959).

RESIDENT HUNTING AND FISHING LICENSE FEES

The second question addresses the conflict over who has the power to set the prices for hunting and fishing licenses and permits, and it is a complicated matter. But it can be reduced to a simple question: does the legislature have the power to set the maximum license fees for residents to hunt and fish? We hold it does.

When Amendment 35 was passed, the only special permits or fees besides the ordinary resident hunting and fishing licenses were those for hunting dogs and some commercial licenses. Since then a variety of tags, permits and licenses have been created by the commission. Permits for deer, trout stamps, duck stamps, special licenses or permits for turkey and bear and use of permits for hunting with bows and muskets have been authorized. According to Director Steve Wilson, at one time it would cost close to $60.00 to buy all the licenses, tags, and permits for resident hunting and fishing.

In 1984 the commission decided to create a sportsman’s permit consolidating many of the licenses and permits into one document. In 1986 the permit cost $17.25. Those who wanted to hunt deer with conventional guns or hunt small game were only required to pay the $10.50 for a “Resident Hunting License.” A major change occurred when the sportman’s permit was issued for 1987. Deer hunters were required to purchase the permit and the price was increased to $25.00.

Under the 1987 plan, a $25.00 Sportman’s Permit allowed a hunter to hunt all legal game except waterfowl which cost an additional $7.00. Resident fishing licenses remained at $10.50 except for a $5.00 trout permit. A Resident Combination Fishing/Hunting License & Sportsman’s Permit cost $30.25.

This was the situation when the legislature passed Act 939 of 1987. (Contention between the legislature and the commission over the Commission’s revenues is nothing new. In 1984 the commission launched an unsuccessful effort to have the legislature establish an excise tax for its benefit. That same year the commission’s Vs % sales tax proposal was defeated by the voters.) The purpose of § 18 of the act is to establish the maximum annual hunting and fishing license fees that could be charged by the Game and Fish Commission. The maximum cost for the ordinary resident hunting license or a resident fishing license is $10.50. Special licenses are permitted for bow or primitive weapon hunting, and for turkey, bear or large game. The maximum price of any of these special licenses is $7.25, with an absolute cap of $17.75 for the privilege of hunting under any of the above circumstances. The legislature also made it clear through the amendatory Act 1 that deer hunters need no special permit. They need only pay the $10.50 resident license fee.

Finally, the act provides that the maximum for any combination resident hunting/fishing license is $28.25; the maximum for a duck stamp is $5.50, and for a trout stamp, $5.00.

Roy Byrns, chief fiscal officer for the commission, testified at trial that several elements of the commission’s licensing scheme do not comply with the act. The commission’s $25.00 price for the sportsman’s permit, its $30.25 for the combination license, and its $7.00 duck stamp exceed the máximums set by the legislature. There is also a conflict in that deer hunters are to be charged $25.00 by the commission and $10.50 under the act. In its complaint, the commission alleged that the legislature’s attempt to set maximum prices on anything other than the basic resident hunting and fishing licenses was an unconstitutional infringement on the commission’s power.

The chancellor ruled that the legislature has the power to set the resident license fees, but that the authority to issue special licenses or permits is vested in the commission. So he approved the basic hunting and fishing license fees of $10.50 and at the same time upheld the sportsman’s permit of $25.00. He ruled that the legislature’s attempt to set other maximum fees in Act 939 and Act 1 is unconstitutional.

The dispute between the legislature and the commission is a disagreement over what Amendment 35 means. First, the amendment specifically says the legislature can raise the fee for resident hunting and fishing licenses. Section 8 reads in part:

Resident hunting and fishing license, each, shall be One and 50/100 Dollars annually, and shall not exceed this amount unless a higher license fee is authorized by an Act of Legislature.

Immediately following that provision is a paragraph which reads:

The Commission shall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and furbearing animals ....

Amendment 35 cannot mean that both the legislature and the commission have the right to set maximum charges for resident hunting and fishing licenses. We cannot have the legislature saying a resident hunting license for hunting deer costs $10.50 and the commission saying it costs $25.00. Amendment 35 clearly meant to give the legislature the power to determine the cost to an Arkansas resident for the privilege of hunting and fishing.

While the legislature has that power, we have strictly limited it. In the case of State ex rel. Wright v. Casey, 225 Ark. 149, 279 S.W.2d 819 (1955), the question was who had the right to set the license fee for fox hunting dogs, the commission or the legislature. We held the commission had that power, at the same time recognizing that resident hunting and fishing license fees are the province of the legislature.

In Smith v. McNair, 231 Ark. 49, 328 S.W.2d 262 (1959), we struck down a legislative act which gave persons over the age of 65 free hunting and fishing licenses. Again, we strictly construed the language of Amendment 35 and held that while the legislature could increase the price of a resident hunting or fishing license, it could not say who might be entitled to free licenses.

In Arkansas Game & Fish Commission v. Edgmon, supra, we struck down a law which directed disbursement of money from the Game and Fish fund to pay bounties on wolves.

All of these decisions limit the legislature to the express grant of power in Amendment 35. Using that same standard for the commission, we hold it cannot intrude on the legislature’s clear prerogative to set the fees in question. The commission can issue licenses and permits for residents so long as their cost does not exceed the maximum set by the legislature. Amendment 35 does not say the legislature can set only one fee for all game or fish. If the fee set by the commission for any resident hunting or fishing license or permit conflicts with the power of the legislature, then the commission’s action must yield. Both cannot set maximum fees for a resident to hunt and fish in Arkansas.

We hold § 18 of Act 939 as amended by Act 1 is constitutional. So the chancellor’s decree is reversed in this regard.

REVIEW AND ADVICE

Finally, we come to the Legislative Council’s “review and advice” provision in Act 939 § 17, which reads:

The agency, board, commission, department or institution to whom funds are appropriated by this Act shall not enter into any contract for any professional or consultant services which shall extend for more than twenty (20) actual working days or the total compensation exceeds five thousand dollars ($5,000) during any one fiscal year without first seeking the advice of the Arkansas Legislative Council. Provided further, that all contracts for professional or consultant services shall be submitted monthly to the Chief Fiscal Officer of the State for reporting to the Legislative Council.

The Legislative Council was created because the General Assembly only meets regularly 60 days every two years. It is composed of 36 members of the senate and house and makes recommendations to the legislature. The council holds hearings on legislative matters when the legislature is not in session — which is most of the time. It reviews all budget requests of state agencies before the legislative session. See Powers, Separation of Powers; The Unconstitutionality of the Arkansas Legislative Council, 36 Ark. L. Rev. 124 (1982).

According to Representative Miller, a Review and Advice Committee was set up by the Legislative Council to advise state agencies on the intent of legislative appropriations and to let the legislature know whether its intent was being carried out. When the agency submits a contract, as required under the act, the committee hears the request and stamps it favorable or unfavorable. Representative Miller testified that what happened after approval or disapproval was up to the executive body and that the legislature was merely acting in an advisory capacity.

Steve Wilson testified that the commission felt limited by the review and advice practice and considered it tantamount to a request for approval of the contract.

John Hale, an administrator in the Department of Finance and Administration, testified that since 1977 it had been his policy to automatically disapprove any contract that the legislative council did not favor.

The chancellor found that the practice on its face and in application to the commission was constitutional. He said the testimony of John Hale was persuasive but he did not find the legislative practice to be the equivalent of approval or consent. We disagree and find that it violates the separation of powers doctrine.

Despite Representative Miller’s testimony that the committee is merely “advising” an agency to act, the proof of the pudding is in the eating. In this case the eating is how that “advice” is treated. Since 1977 the Department of Finance and Administration has disapproved any request that the committee stamped unfavorable. The effect of the “advice” is simply a veto of executive actions by the legislature.

It is unreasonable to expect any state agency to defy such a body that has the power to determine its well-being. See Powers, Separation of Powers; The Unconstitutionality of the Arkansas Legislative Council, supra. The “advice” offered by the committee to an agency is tantamount to a legislative order on how to execute a contract.

The Arkansas Constitution contains explicit separation of powers provisions which declare that one branch cannot exercise any power belonging to another branch. Ark. Const, art. 4, §§ 1 and 2. See also Wells v. Riviere, 269 Ark. 156, 599 S.W.2d 375(1980). Colorado dealt with a similar situation in Anderson v. Lamm, 195 Colo. 437, 579 P.2d 620 (1978). An executive agency was requested to get “approval” by the Joint Budget Committee before spending money which had been appropriated. The court said:

“[T]he legislature may not attach conditions to a general appropriation bill which purport to reserve to the legislature powers of close supervision that are essentially executive in character. We are confronted with such a legislative encroachment on the executive in the present case with respect to appropriations that are conditioned upon certain reports to or approval from the general assembly’s Joint Budget Committee.

An unconstitutional encroachment may not always take the form of outright invasion. A subtle coercion exercised by a powerful branch of government can effectively tie the hands of a coordinate branch. The executive authority should be free, not only from blatant usurpation of its powers, but from paralyzing interference as well. The legislature cannot hold the executive branch hostage to its will. While it can and should hold hearings and investigate at length the performance of state agencies, it cannot intrude on the prerogatives of the executive branch of government.

We reverse the chancellor’s ruling and hold that § 17 of Act 939 is unconstitutional.

We do not reach the question, raised in the commission’s brief, of whether substantive riders can be attached to appropriation bills. It was not argued below. Horne Bros. Inc. v. Ray Lewis Corp., 292 Ark. 477, 731 S.W.2d 190 (1987).

The decree is affirmed in part and reversed and remanded in part with directions to enter a decree accordingly.

Affirmed in part. Reversed and remanded in part.

Hays, J., concurs in part and dissents in part.

Steele Hays, Justice,

concurring in part and dissenting in part. I agree with the majority opinion as to point I, in affirming the chancellor’s ruling that the legislature’s restriction limiting the amount of money the Game and Fish Commission may spend on its magazine violates the separation of powers doctrine and Amendment 35.1 also agree as to point III, holding the review and advice section of Act 939 unconstitutional. However, I must respectfully dissent as to point II, the constitutionality of Section 18 of Act 939.

The majority opinion characterizes the question confronting the court under § 18 of Act 939 as the simple question of whether the legislature has the power to set the maximum license fees for residents to hunt and fish. The majority answers “yes.” But there is much more to the conflict under § 18 of Act 939 than simply setting the prices for hunting and fishing licenses. What is at stake strikes at the heart of the Game and Fish Commission’s constitutionally delegated duty to “control, manage, restore, conserve and regulate” the birds, fish, game and wildlife resources of this State.

Amendment 35 clearly provides that the maximum resident hunting and fishing license fees shall be set by the legislature.

Resident hunting and fishing license, each, shall be One and 50/100 Dollars annually, and shall not exceed this amount unless a higher license fee is authorized by an Act of Legislature.

But in the very next paragraph Amendment 35 grants the exclusive power to issue licenses and permits to the Game and Fish Commission.

The Commission shall have the exclusive power and authority to issue licenses and permits, to regulate bag limits and the manner of taking game and fish and furbearing animals, and shall have the authority to divide the State into zones, and regulate seasons and manner of taking game, and fish and furbearing animals therein, and fix penalties for violations.

The legislature has, I believe, exceeded its constitutionally delegated duty to set maximum fees, and encroached on the power granted to the Commission to “issue” licenses under § 18 of Act 939 by creating categories of special licenses for turkey, bear, and elk. The legislature authorized the issuance of a limited number of special licenses in addition to the resident hunting and fishing license. Such virtual issuance violates Amendment 35. Furthermore § 18(G) of Act 939 states that “this Act shall be the only license or permit fees that the Game and Fish Commission may charge a resident for the privilege of hunting and fishing in this State.” Yet, Amendment 35 reserved the exclusive power to issue licenses to the Game and Fish Commission.

The power to issue licenses and permits is located in the same paragraph which gives the Commission the authority to regulate bag limits, to regulate the manner of taking game and fish and furbearing animals, to divide the State into zones, to regulate the seasons, and to fix the penalties for violations. All the enumerated exclusive powers granted to the Commission deal with their powers of regulation, conservation, and management of our fish and game resources. Therefore, the power to issue licenses and permits was clearly viewed by this statute as another method of controlling and stocking our game population. Although the licenses and permits are admittedly a part of the revenue raising scheme, their primary purpose is inextricably related to game and fish management.

In fact, the court recognized the regulatory nature of licenses in State, Ex. Rel. Wright v. Casey, 225 Ark. 149, 279 S.W.2d 819 (1955), upholding the Commission’s authority to require a dog license fee of $1.50 for hunting foxes. The court recognized the Commission’s broad authority to adopt rules and regulations for the conservation and regulation of wildlife in Arkansas, including establishing license fees which conflicted with those fees set by the legislature. In looking at Amendment 35, Sections 1 and 8 the court held:

Under these provisions of the amendment we hold that the Commission has been given full and complete administrative power and authority to promulgate rules and regulations necessary for the conservation and preservation of all wildlife including not only the power to establish a bag limit, set seasons in which to hunt and fish and the penalty for violations but also the power to levy a license fee on all hunting dogs, just so long as such license fees are not unreasonable or arbitrary and are for regulatory purposes — as appears here — and not revenue . . . Obviously the people by enacting this amendment intended that the Commission should have sufficient and ample funds with which to function in preserving and propagating wildlife in the manner provided therein.

The Casey case illustrates the court’s recognition that the licensing and permit process of the Commission directly relates to their powers of management and control of game resources. Although arguably in that case the facts of issuing a dog license relate more closely to the manner of taking game, the court nevertheless examined Sections 1 and 8 of Amendment 35 and upheld the regulatory nature of the license and permit structure of the Commission.

The fallacy in the majority’s reasoning, as I view it, lies in defining license fees as a purely revenue raising matter. This belief leads the majority to the conclusion that the resident hunting and fishing license should include all permits and stamps for each particular species for which the legislature would then establish the maximum fee in toto. What this rationale ignores is the management function of the special licenses and stamps. Such licenses and stamps allow the Game and Fish Commission flexibility in controlling and stocking the game resources of this State.

Those parts of § 18 of Act 939 setting the maximum fee on the annual resident hunting and fishing licenses at $10.50 each, I regard as constitutional. However, those sections of Act 939 allowing the legislature to issue special licenses and permits are unconstitutional in light of the express language in Amendment 35 granting the exclusive power to issue licenses and permits to the Game and Fish Commission.

       The author would find the evidence admissible but reach the same result the majority does, that is, the interpretation of Amendment 35 would be the same.

       The issue here is, of course, resident hunting and fishing license fees. The parties concede the commission has historically set the prices for nonresident hunting and fishing licenses.


author: Darrell Hickman, Justice.

text:
    Edward L. COLEMAN et ux. v. Martha S. Simpson Coleman BUTLER
    88-91
    757 S.W.2d 175
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Edward L. Coleman and Madelyn L. Coleman, for appellants.

      John L. Kearney, for appellee.
   Darrell Hickman, Justice.

The only issue in this case is whether the requirement that a foreign judgment be registered in the county in which the defendant resides or is summoned violates the Arkansas and United States Constitutions.

The trial court dismissed the appellants’ attempt to register an Ohio decree in Pulaski County. The decree awarded Edward Coleman custody of his son. The defendant, Martha Coleman Butler, lived in Ashley County with the child. She did not reside nor was she served with summons in Pulaski County.

The appellants have offered no convincing argument or authority for their claim that this venue requirement is unconstitutional. For this reason we affirm the trial court’s dismissal. See Widmer v. Widmer, 293 Ark. 296, 737 S.W.2d 457 (1987).

Affirmed.


text:
    James Edward HURST v. STATE of Arkansas
    CR 88-63
    757 S.W.2d 558
    Supreme Court of Arkansas
    Opinion delivered October 10, 1988

      Allen Law Firm, by: Thomas J. O’Hern, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

James Edward Hurst was convicted of first degree murder and sentenced to life in prison. He shot his father four times with a .22 pistol at his father’s mobile home in southwest Little Rock. Hurst was present when police arrived on the scene. He stated that two men had entered the trailer, fired shots and left in a Camaro. The next day when police questioned him further, he broke down and confessed to killing his father.

Three arguments are made on appeal. Hurst claims first that he confessed before he was advised of his Miranda rights; second, that the Miranda warning eventually given was defective; and finally, that his confession was not voluntarily given. We find no merit in any of these arguments and affirm the trial court’s decision to admit the confession into evidence.

At the suppression hearing, Detective Ivan Jones disputed Hurst’s claim that he incriminated himself before the Miranda warnings were given. Hurst had been brought to the station to go over his witness statement made the previous day. After briefly questioning Hurst, Jones was convinced the statement was untrue. He then informed Hurst he was a suspect and called in another officer to witness the Miranda warnings. According to Jones, Hurst did not confess before his rights were read to him.

We will not disturb the trial court’s ruling on this point. Detective Jones disputed the appellant’s version of what occurred. This is a matter of credibility that is best determined by the trial judge. Jones v. State, 296 Ark. 135, 752 S.W.2d 274 (1988).

The rights form used by the officers in this case contained the same defect as the form in Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987), cert. denied, 108 S. Ct. 1076 (1988), in that it did not adequately convey to the indigent accused his right to have counsel free of charge. Hurst was crying as his rights were being read to him. He expressed fear that his family would not help him. Detective Fulks, the other officer present when the warning was given, testified that he told Hurst “if the family wouldn’t help him . . .the court would appoint him an attorney. In fact. . . they would appoint him a public defender.” He also told Hurst “if the family would not hire him an attorney, and they couldn’t afford one ... the state would appoint a public defender.”

The trial judge found that these statements by Detective Fulks were sufficient to advise Hurst of his right to appointed counsel. We agree. In Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988), we held that a similar deficiency in a rights form was cured when an officer orally informed the accused that if he could not afford a lawyer, one would be appointed. In this case we also find that the verbal explanation by the detective adequately apprised the accused of his right to appointed counsel.

Finally, we address the issue of the voluntariness of the confession. After the Miranda warnings were given, Hurst gave a detailed confession. He also led police to an area where he had disposed of the murder weapon and a briefcase he had taken from the trailer.

In determining the voluntariness of a confession, this court makes an independent review of the totality of the circumstances and reverses only if the trial court’s finding is clearly against the preponderance of the evidence. Scherrer v. State, 294 Ark. 287, 742 S.W.2d 884 (1988). Here we consider Hurst’s age of 17; his 11th grade education; the short period of detention before the confession was given; his familiarity with the legal process (he had been recently convicted of robbery); and the police testimony that no coercion was used to obtain the confession.

In view of these circumstances, we cannot say that the trial court’s ruling that the confession was voluntary was clearly against the preponderance of the evidence.

We find the record contains no other reversible errors. Ark. Sup. Ct. Rule 11(f).

Affirmed.