*1 it true that While inadmissible. generally such test constitute always nature will not allowing of this testimony 514, 598 S.W.2d error, State, Van Cleave prejudicial use of caution in fault the trial court’s cannot testimony. such excluding sufficiency tries to attack the also did not preserve he
evidence to
his conviction.
support
verdict
making a motion for directed
this issue for appeal by
below,
evidence
by questioning
sufficiency
or
36.21(b);
Hughes
other
See A.R.Cr.P.
him
manner.
any
Van Martin RICHIE CR 88-44 Arkansas Court of
Supreme 10, 1989 Opinion delivered April *2 Osment, Pamela S. for appellant. Clark, Gen., Reeves,
Steve W. Att’y by: Oían Asst. Att’y Gen., for appellee.
Robert H. Dudley, Justice. was appellant charged in eight an count information committing with following crimes against murder, Mullen: kid- napping, and rape, and robbery; committing following crimes murder, Axie Crinen attempted capital kidnapping, rape, and The robbery. information did not charges which specify constituted the underlying felony or felonies to the capital charges. The next year, appellant guilty to all pleaded eight counts and was sentenced to life without on the parole capital murder conviction and to life on each of the other seven convictions. In he filed a Rule 37 petition seeking the convictions for the underlying felonies set aside. On February 9,1988, the trial judge wrote “Rule denied” in his docket book. judgment entered, No was and the was not informed of the ruling. Under such we granted circumstances appellant’s motion for a belated appeal. 12, 1988,
On September General Attorney apparently recognized that a denial of post-conviction relief without specify- ing findings and, motion, was any reversible error asked us to by remand the case to the trial court so that a judgment findings with of fact could be entered showing that the prisoner not entitled 5, 1988, to relief. On December granted the State’s motion court so that the trial trial court and remanded case entitled to relief. was not prisoner could state the reason is “Trial court issued this Court by specifically provides: Writ That subsec- 37.3(a).” directed to with A.R.Cr.P. comply and and the files records “If the motion tion the rule provides: relief, to no prisoner case show that the conclusively effect, to that findings specify- make written the trial court shall to sustain upon or records that are relied any of the files ing parts with entering judgment Instead findings.” the court’s relief, was not entitled to findings stating the reason the prisoner convictions vacating trial an order court entered felonies of kidnapping, rape, sentences for did Mullen. The order in the vacate one or some reasons for refusal to give any *3 murder of Axie Criner. underlying attempted capital felonies this to writ of lodged pursuant order was then in court The certiorari. to is
The direct that he entitled argues on appellant appeal and life sentences for the kidnappings, have all six convictions six underlying felo- they and robberies vacated because rapes, to one is The State admits that the appellant nies. the capital and set aside as underlying conviction sentence Mullen, underlying set aside as Dorothy and another State, of in a murder Axie Criner. capital attempted court too much granted that the trial argues veiled cross-appeal, it aside the and rape, relief when set kidnapping, of murder robbery charges underlying capital Mullen. is is of interesting part appellant’s argument
It that is sentences for that he entitled to have the three convictions and vacated, when the felonies the Mullen murder underlying argument trial court relief. We assume the is granted that very validity of attorney made because appellant’s questions order, trial but court’s does want disclose openly we on our jurisdictional issue to the State. It is a issue which raise and the record is filed in own. After a notice of is docketed appeal court, for jurisdiction, this the trial court loses except appoint State, Ark. 677 ment of defense counsel. Glick 283 Here, docketed, and S.W.2d 844 belated (1984). appeal jurisdiction lost at that the record was filed. The trial court had
361 We point. remanded and vested the trial court with jurisdiction Thus, “to with only comply 37.3(a).” the trial court acted jurisdiction without vacating three of convictions. Since void, hold the trial court’s we do order not reach the issue whether the State can order. See State v. from the cross-appeal Hurst, 296 Ark. 752 (1988). S.W.2d 749 at least one of the felonies
Unquestionably, underlying vacated, capital murder of Mullen Martin v. must be State, and at least one of the felonies underlying the murder of Axie attempted capital State, 37, 627 Criner must set aside. Rowe v. S.W.2d (1982). however, 16 us Appellant, urges to vacate the kidnap and ping, rape, robbery convictions as murder of Dorothy Mullen and to vacate the kidnapping, rape, convictions as robbery underlying the attempted capital Criner, 71, 628 murder Axie based Hill 27 Ark. upon S.W.2d Hill, we stated:
We affirm the conviction and sentence for capital
murder but
felony
set aside the lesser included offenses of
kidnapping and aggravated
in connection with
offenses against
Teague.
Donald Lee
Ark. Stat. Ann. 41-
§
105(l)(a) and (2)(a)
1977)
(Repl.
Code Ann. 5-1-
[Ark.
§
(á)
(1)
(b)(1)] prohibit
judgment
of a
entry
conviction on capital felony murder or attempted capital
*4
murder and
felony
the
or
underlying specified felony
State,
v.
Swaite
listed. the charges, murder the capital or felonies felony underlying so, is now the Even charges. did not the question defense the conviction and murder capital to some relief since one at least each required murder conviction capital attempted turn, into murder. which, merged capital in underlying felony sentencing conviction and merger then prevents The doctrine on underlying felony. felonies all of the issue to be decided is whether
The only the two merged capital in counts into enumerated separate charge. merged one into each charges, only capital or whether statute, 5-10-101(a)(l), Code Ann. murder Ark. capital § to into felony merged capital one be only underlying requires all other felonies It does not that require murder conviction. murder merged into the charged capital at the same time conviction, the one Accordingly, felony conviction. we hold that conviction, was conviction for merged capital into the Mullen, likewise, conviction the robbery murder merged into conviction for the capital was attempted in remain of Axie Criner. The other convictions and sentences effect.
Reversed. J., concurs.
Purtle, Justice, concurring. duty It is the Purtle, John I. or state to make in the information amended specific allegations had to at the guess information. this case that logical deciding The trial court made conclusion felony. charge. all three felonies at issue murder supported we must If we are construe criminal statutes strictly as to the right. guess conclude that the trial Our judge his, is no better but we are because underlying felony right than concerning us. charges there more of All four criminal acts Mullen out of one grew episode, acts against and all four of the criminal charges concerning state intended grew Axie Criner out one episode. Perhaps all were prove that of the other felonies supporting charge. charge murder and the murder felony attempted capital *5 e.g., Hill See, 628 S.W.2d not strive and the court should prosecution all, the facts. After beyond crime sentence multiply cannot be to serve more than one life sentence. expected reversal, majority the decision but it seems captions as to me to more of an affirmance. Cigna
Helen MR. C. CAVENAUGH’S and WADE
Insurance Company 88-245 Court of
Supreme Arkansas Opinion delivered April