State v. Vann Bragg
2016 Ark. 242
| Ark. | 2016Background
- Vann Bragg pleaded guilty in 2010 to attempted delivery of cocaine and received five years’ probation. A 2011 petition to revoke probation (alleging theft of a ring) was dismissed without prejudice after Bragg pleaded guilty in CR-2011-42 to theft by receiving for that ring.
- A second petition to revoke (filed July 2011) charged Bragg with possession-related offenses and theft of a gun from the same burglary; probation was revoked after a 2012 hearing and Bragg was sentenced to 180 months. The appellate court affirmed and mandate issued in May 2013.
- Bragg timely filed a Rule 37 petition (July 2013) arguing, among other grounds, that the plea in CR-2011-42 implicitly resolved all charges arising from the burglary and that counsel was ineffective for failing to reduce any such agreement to writing.
- After an evidentiary hearing (April 2014), the circuit court granted Rule 37 relief (Aug. 27, 2014), set aside the sentence, and ordered Bragg released; written findings and conclusions were entered May 19, 2015, explaining that the plea was intended to resolve all pending issues.
- The State appealed (first notice Sept. 26, 2014). The State lodged the record well after 90 days from that first notice. The Supreme Court dismissed the appeal for lack of appellate jurisdiction because the State failed to timely file the record under Ark. R. App. P.–Civ. 5(a).
Issues
| Issue | State's Argument | Bragg's Argument | Held |
|---|---|---|---|
| Whether the circuit court clearly erred in granting Rule 37 relief without finding ineffective assistance of counsel | The court erred because Rule 37 relief requires a finding of ineffective assistance | The plea bargain implicitly resolved all pending issues; counsel advised him the plea would resolve everything | Court did not reach merits; appeal dismissed for lack of jurisdiction due to untimely lodging of the record |
| Whether the August 27, 2014 order (without written findings) was final for purposes of appeal timing | The August 27 order was not final because it lacked mandatory written findings; final order was May 19, 2015 | The August 27 order was final and started the clock for lodging the record | Court held August 27 order was final for appeal-timing purposes and the 90-day clock began with the first notice of appeal |
| Whether the State timely lodged the record after its first notice of appeal | N/A (procedural) | Argued State failed to lodge record within 90 days of first notice; thus appeal should be dismissed | Court held timely lodging of the record is jurisdictional; State failed to lodge within 90 days and appeal was dismissed |
| Whether remand for written findings was required instead of dismissal when record is late | State suggested a remand would have been appropriate if record filed earlier or supplemented later | Bragg asserted jurisdictional failure due to late record | Court explained it would have remanded if record had been timely; nonetheless, because record was late, dismissal was required |
Key Cases Cited
- Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997) (Rule 37.3(c) requires written findings and conclusions)
- Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (2010) (failure to enter written findings leads to remand for fact-finding)
- Conlee v. Conlee, 366 Ark. 342, 235 S.W.3d 515 (2006) (90-day lodging period runs from filing of first notice of appeal)
- Smith v. State, 351 Ark. 325, 97 S.W.3d 380 (2003) (90-day period begins with first notice even if multiple notices filed)
- Servewell Plumbing, LLC v. Summit Contractors, Inc., 360 Ark. 521, 202 S.W.3d 525 (2004) (Rule 5(a) contemplates lodging from a final judgment)
- State v. Barrett, 371 Ark. 91, 263 S.W.3d 542 (2007) (collateral appeals are civil in nature for appellate procedure purposes)