*1 Rather, bearing he rails restriction of arms. against any upon we made it clear that the State as a
Long ago
may,
matter of its
restrictions on one’s
power, place
police
appropriate
State,
to bear arms. See Haile v.
(1882);
James BOLT v. STATE of Arkansas 93-281 CR
Supreme Court Arkansas delivered October Opinion Karr, Hutchinson, Stubblefield, Hutchinson, & by: W. Asa for appellant. Bryant,
Winston J. Brent Gen., Standridge, Att’y by: Asst. Gen., Att’y for appellee. Glaze, 5,1992,
Tom Justice. On James W. August Bolt was charged with the crime of theft of He property by decеption. 31, 1992, arraigned August pled guilty. At the arraignment, the court informed him of his rights, including Both Bolt and his signed a form attorney’s form further reflects the rights. set out those *2 understanding he believed Bolt was capable
declaration that proceeding. him and the substance rights 9, trial December for on appеared Bolt and his attorney asking court commenced the proceeding trial court said that it was. The then if it was state ready. state said, asked, attorney to Bolt’s ready proceed?” “Is the defendant Honor, formally and at this time we wоuld ready, “We’re Your in this matter. would jury waive any requirement The judge responded, for court to hear the case.” proceed will so court “All reflect.” The trial then saying, right, sworn, Bolt it tried the case and found guilty had the witnesses Bolt three The court sentenced to theft of property. imprisonment. trial, trial, filed for hew Bolt a motion
Subsequent he had not entered a waiver of among things, other asserted on motion and conducting hearing Bolt’s jury. Upon trial by it, found Bolt was when his the trial court denying trial. right judge stood waived his noted jury attorney trial, had his and that attorney throughout that Bolt assisted when his obviously intelligent, was educated and competent right jury waived. Bolt’s sole point important holding is that trial court erred in Bolt had properly appeal waived his trial. jury A.R.Cr.P. Rule as it argument premised upon
Bolt’s conjunction 31.3. Those rules reads with A.R.Cr.P. respec- as follows: tively provide
Should a defendant desire to a trial he must so either in by jury, do record at which any proceedings сourt. A verbatim waives shall be made and preserved.
* * * where fine is only imposed by misdemeanor be waived the defendant’s may charged with crime corporation that a attorney, except counsel or authorized through waive а officer. corporate 31.2, Rule trial court cannot
Bolt
under
argues
from a
attorney
a waiver of
defendant’s
because
accept
suggests
defendant must
waive it. Bolt
that only
“personally”
fines,
involving
cases
as described
in misdеmeanor
jury.1
To
cites this court’s
argument,
further
Bolt
support
841 S.W.2d
recent decisions in Calnan
310 Ark.
(1992), and
S.W.2d
Winkle
where
held that
the court
an accused’s
trial by
waived in
shall not be violated unless that
the manner
State, 305 Ark.
by law. See also Elmore v.
Calnan,
In Winkle
reversed the
*3
held
defendants’ convictions and
were entitled
a
even
they
had
a
though they
objected
not
nor had
before or
requested
Calnan,
to having
at trial
been tried without one. In
the court said
the law is
the
that
clear that
waive the
only way
trial right is
making
express
declaration in
writing or in
and that
court
court
the
open
open
where the defendant
his or
must be
waives
her
preserved.
747,
Ark.
310
those to show the failed that either defendants or waived attorneys affirmatively rights the defendants’ to a Here, court, record, Bolt’s counsel stated in jury. and in Bolt’s Bolt waived a and presence that specifically asked trial court hear the case. well Bolt was aware that he a right had the trial jury, and court determined while Bolt understood this waived it in right, compliance with Rule Arkansas’s law constitutional for a providing waiver. Const. See Ark. art. 7. We agree. §
Bolt’s argument is reduced to whether he narrowly person- not his ally, must In attorney, addition to defendant’s Ann. See Prince absence. presence but in misdemeanor [1] § a We note that a 16-89-103 is not required (1987). to waive case, the trial in misdemeanor cases. His In this Ark. trial is respect, with a had in the defendant’s absence. Ark. Code consistent with [590] Rule 31.3’s felony S.W.2d 25 plea may must the law likewise be (1979). that a defendant’s that allows the during accepted the trial, in his above, based on the Bolt’s contention reject
what stated wording our of similar interpretаtion of Rule 31.2 and receiving with dealing in criminal rules procedure found our in 24.4 and 24.5 provide Rules acting upon guilty pleas. guilty court shall not accept plea relevant part the defendant addressing person- without first from defendant shall the court determining plea, and in the voluntariness ally force, to determine if any the defendant personally also address used to induce the Under plea. threats or promises plea judgment upon guilty the court cannot enter is a basis for plea, without if there factual making inquiry stated that a factual construing foregoing in this court the accused only by addressing person- basis can be established Ark. McDaniel v. ally. Furr v.
court corrected its of its in McDaniel misinterpretation fоr a had that the factual basis stating providing the court the defendant. be furnished plea only Furr, Furr’s where the upheld guilty pleas charges recounted the and bases the crimes the presence Furr, counsel, where the defendant prosecutor the Furr court acknowledged guilt. Significantly, added court and presence Furr’s counsel also confirmed defendant, bases of the factual recited truthfulness *4 court.2 sum, that, who desires to hold while a defendant his under Rule 31.2 must do so either in right tо court, her make such attorney may his or also open acknowledged as the has he or she had long
waiver so defendant the attorney right been informed of and waives the right Here, in the defendant’s presence. and his right jury, Bolt had been informed of to indisputably and court when attorney it was acknowledged present The waived court on the record. court’s action right kind, matter was for in a plainly proper, bright factual basis of the crime [2] Justices line McDaniel rule in shоuld Dudley, Newbern and to he or she followed, Purtle dissented, pled and guilty. voicing should opinion establish the that
391 State, must be bound v. 262 by attorney’s action. Waller Cf. Ark. we affirm the Accordingly, trial court’s and decision. ruling
Dudley JJ., Newbern, dissent. Justice, Dudley,
Robert H.
dissenting. Appellant
trial,
with a
At
attornеy
stated
felony.
appellant
heard
case
jury.
waived his
The
judge
without a
found
him
appellant guilty,
sentenced
to three
counsel,
imprisonment.
different
Appellant,
represented
trial,
a new
moved for
contended that he had nоt personally
entered a
The
waiver of
trial court denied the
motion.
Appellant
argues
under
appeals
the Constitution of Arkansas
its
did
implementing
not waive his
a trial
right to
The
by jury.
majority opinion fails
follow the clear and definite
Cоnstitution and
rules, and
holds that an
can
waive the
I
by jury.
dissent.
a trial
in a criminal
has
case
been a
both
accused and the
since
State
Arkansas was initially
constitution,
into
admitted
Union.
statehood
the 1836
constitution,
“The
of trial
by jury shall remain
inviolatе.” “Inviolate” means that it can not be violated. It cannot
waived;
it
had.
must be
Neither the State nor the defendant
could waive a jury trial under this definitive
Wilson
provision.
State,
State,
Ark.
(1855);
16
601
Bond
cases for the reason.) same The secession or the 1861 constitution, contained identical did provision, as the military constitution and the reconstruction constitution of 1868. Obviously, our all forefathers wanted criminal cases decided juries, and not There by judges. Trial exceptions. was inviolate. and, our Constitution in adopted
time, added the
“but a
trial
phrase
jury
waived in the
Thus,
manner
law.”
prescribed by
the present constitution
inviolatе,.
provides: “The
trial
shall
.
by jury
remain
.
of
”
but a
may be waived in the manner prescribed by law.
Four
after
7 (emphasis supplied).
Ark. Const. art.
§
a
mean that
second
held
provision
adding
phrase,
by
trial in the manner
prescribed
defendant can waive а
In Moore v.
time.
In misdemeanor where only be waived the defendant’s may a jury that a with crime attorney, corporation any except or through counsel authorized agent. [Emphasis supplied.]
In all of our cases we have read the of Rule prior just 31.2 it is. In Calnan 310 Ark. 841 S.W.2d (1992), wrote: The law is clear that the only way wаive personally making declaration court and express that the open court where the waives his or her right must be preserved. That (Emphasis supplied.) did not occur here. Fretwell v. 289 Ark. S.W.2d 630 wrote “Criminal cases which require trial must be so (1) tired unless waived by defendant, (2) assented to prosecutor, (3) approved by the court. The first two requirements are before the mandatory court has discretion in the matter.”
Our
expression
clearest
that a criminal defendant
bears no burdеn of
demanding
under our
constitution
and law came in
Elmore
stated,
S.W.2d 370
“There was no
need for
Elmore
demand or
for
move
a trial by jury,
much
issue,
less obtain
ruling
thus the trial court
erred in not honoring Elmore’s
right to
tried
aby jury.”
Id.
The Arkansas Constitution and are definite. Tоgether that in they provide cases the felony That was by jury. not done Yet, in this case. majority affirms the opinion trial court’s ruling that appellant waived a jury trial in compliance with Rule 31.2. The rationale in the majority opinion that its construction of Rule 31.2 is to that comparable given Rules of Criminal Procedure 24.4 deal rules that with accept- ance guilty That rationale plea. contains the fallacious premise order construing interpreting
that Rule
needs
It
no cоnstruction.
rule is
meaning.
needs
determine
*7
to construe a
authority
This court has
unambiguous.
plain
unambiguous. Cowger
statute that
shall do be said. more need words and its rules implementing of the constitution does meaning. majority opinion
should be is that some members of the not do so. reason Perhaps part find We all share that actions majority appellant’s reprehensible. but this cаse involves so much more. The state constitu- feeling, aby tion and its rules should never be thwarted is had in specious construction order interpretation does justify result. The end the means. prevent undesirable If waiver of majority believes prescribing are procedure should not they today, proper should followed and rules rewritten. J.,
Newbern, dissent. joins STATE Arkansas LOCKHART v. Henry CR 93-215 of Arkansas Court
Supreme delivered October Opinion