Johnson v. State, 769 S.W.2d 3

Johnson v. State

769 S.W.2d 3

Ark.

1989

Check Treatment

Barry L. JOHNSON v. STATE of Arkansas

CR 88-182

Supreme Court of Arkansas

May 1, 1989

769 S.W.2d 3

the lineup proceedings, despite the fact that formal charges against him had not been filed at the time. In McClendon v. State, 295 Ark. 303, 748 S.W.2d 641 (1988), we held that the Sixth Amendment right to counsel had not attached when the accused was required to participate in the lineup prior to the time charges had been filed against him. See also Kirby v. Illinois, 406 U.S. 682 (1972), and Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988).

The issue of whether to declare a mistrial is a matter which was no doubt seriously considered by the trial court and refused. We cannot find from the record that there was an abuse of discretion by the judge. Even if we were to reach the second issue, the circumstances of this case do not require reversal for allowing the in-court identification. The judgment is therefore affirmed.

Darrell F. Brown & Associates, P.A., for appellant.

Steve Clark, Att‘y Gen., by: Ann Purvis, Asst. Att‘y Gen., for appellee.

ROBERT H. DUDLEY, Justice. Appellant filed a petition for a writ of habeas corpus alleging that he was convicted and sentenced in municipal court and later convicted and sentenced in circuit court on the same facts. The circuit court declined to issue the writ. We affirm.

The issue on appeal is whether the petitioner established that he was being held without lawful authority. Ark. Code Ann. § 16-112-103(a) (1987). One is held without lawful authority when it is shown that: (1) The commitment is invalid on its face; or (2) the court lacked jurisdiction. George v. State, 285 Ark. 84, 685 S.W.2d 141 (1985). Neither of these conditions was met in this case.

(1) Commitment Invalid on Its Face. Appellant makes no assertion that the commitment was invalid on its face.

(2) Court Lacked Jurisdiction. At the time of the second conviction, the one in circuit court, the trial court had personal jurisdiction over the appellant and also had jurisdiction over the subject matter, and had authority to render the particular judgment. Thus, the trial court had jurisdiction and habeas corpus will not issue. See Goodman v. State, 221 Ark. 308, 254 S.W.2d 63 (1952).

Affirmed.

HOLT, C.J., and PURTLE, J., concur.

JACK HOLT, JR., Chief Justice, concurring. I concur, but would decide this habeas corpus case on the basis of waiver as discussed in United States v. Broce, — U.S. —, 109 S.Ct. 757 (1989). In that case the Supreme Court held that a defendant must raise a double jeopardy argument at the time of the alleged second conviction or else the issue is waived and, therefore, cannot be raised in a subsequent habeas corpus proceeding. I would overrule any of our cases with dictum to the contrary.

PURTLE, J., joins in this concurrence.