*1 court, standing court’s order dated January 1987. The however, 25,1990. ordered case reinstated on appellee’s January then moved to vacate restatement order appellants 41(b), to ARCP the dismissal should have claiming pursuant been with because the dismissal had been prejudice appellеe’s The trial court second. denied motion and appellants’ appellants bring this appeal. 41(b)
We do not reach Rule be appellants’ issue cause the trial court’s order denying appellants’ motion to vacate appellant’s reinstatement of case is not final or judgmеnt order from which an be Rule appeal may 2(a)(1) taken. Arkansas Rules of Procedure. For a to be Appellate judgment final, court, it must dismiss the from the them parties discharge action, from the or conclude their rights to the matter in subject controversy. Roberts Inc. v. Enterprises, Arkansas Highway Comm’n, see also C.J.S. 121(c) (1957) & Error Appeal (which provides, generally, an appeal will not lie from an order an setting aside order of Here, dismissal.) the trial court’s order no makes such disposition case, fact, of the parties’ and in retained jurisdiction over the parties issues in controversy for future adjudication. Because the trial court’s order is not a final one from which taken, an be appeal we may dismiss appellants’ appeal. Charles Lee SMITH v. STATE of Arkansas 91-146 Court
Supreme of Arkansas Opinion delivered November *3 Jr., Defender, R. Simpson, William Public O. by: Andy Shaw, Defender; Public for Deputy appellant. Gen., White, Bryant,
Winston Teena Att’y by: L. Asst. Att’y Gen., for appellee. Glaze, Justice. This case is another of a recent number
Tom of cases the involving juvenile of the new interpretation transfer statute, Ark. Code Ann. 1991). 9-27-318 (Supp. had Appellant § five cases against him in pending court when chancery the prosecutor moved to two of transfer these cases to circuit court. One case contained a felony count and theft-by-receiving the other case involved two felony counts of breaking entering or into two vehicles. A capital murder felony charge had also been against filed the appellant to the transfer in prior hearing this casе, but the court stated it did not specifically consider that murder charge it when ruled on the state’s motion to transfer. After a hearing motion, on the state’s the trial court transferred the cases to circuit court. In this appeal, appellant claims (1) court erred in failing to allow him ten notice bеfore the days hearing, (2) in finding sufficient evidence existed to (3) transfer and in rejecting that 9-27-318 argument is § vague. unconstitutionally
In his first argument, cites Ark. Code Ann. 9-27- 325(f) (1987) in which relevant part that the Arkansas provides Rules of Civil Procedure all juvenile shall apply proceed- court ings the Arkansas Rules of Criminal Procedure shall аpply that, he submits under Accordingly, proceedings. delinquency in case motion this 6(c), prosecutor’s Rule ARCP no later than ten on appellant to have been served was required argues for hearing. Appellant time specified before the days notice of the four given only days because he that motion, its the trial court abused prosecutor’s scheduled for the additional time to disallowing prepare discretion to the state’s case. respond inflexible, and in 6(c) is not language, its own Rule
By
shown,
fact,
the court
for a
may provide
for cause
provides
in the Rule. In any
set out
ten-dаy
other than the
period
time
court
event,
clearly provide
of Civil Procedure
our Rules
of a technical error
be disturbed because
should not
proceedings
Abbott,
630,
Ark.
v.
in no
Robinson
prejudice.
which resulted
Stated another
see also ARCP Rule 61.
(1987);
citing
Equipment,
Power
McDonough
where this court
is our seminal case on this
(1984),
point
U.S. 548
an error is
is it
because
longer
simply
held no
presumed
State, 295 Ark.
it is
error. See also
v.
Gage
committed
prejudicial
178,
337,
Statе,
v.
295 Ark.
(1988);
Although appellant the trial court’s to with the hampered by ruling proceed motion, on the the record fails to bear out prosecutor’s appellant’s no argument. While the offered he entered prosecutor testimony, into a number of with the and based stipulations appellant, those we believe the stipulations, prosecutor by showed clearly clear convincing and evidence that the transfer of appellant’s State, 621, 816 cases was v. Bradley warranted. 306 Ark. S.W.2d 605 (1991).
Under Ark. Code Ann. 9-27-318(e) 1991), the (Supp. must following deciding consider the factоrs before juvenile’s whether to transfer a case: offense, (1) The the seriousness of and whether violence was by juvenile the in the commission of employed offense; the
(2) Whether the offense is of a part repetitive of pattern adjudicated offenses which would lead the juvenile determination that the is beyond rehabilitation under existing rehabilitation as programs, evidenced by efforts to past treat and rehabilitate juvenile and the efforts; response such and (3) traits, character prior history, mental ma- turity, and other any factor which reflects upon juvenile’s for rehabilitation. prospects
As we have stated
repeatedly, the
court need not
give equal weight to each of the foregoing factors and
need
proof
not be introduced by
prosecutor against
on each
State,
312,
factor.
v.
Pennington
first theft of property of another later revoked because probation had been on that appellant further stipulated The charge. parties Office of Youth to the and had been committed attention home — robbery which included three or four occasions on Services underscored the state also of 1989. The January filed in charges cases involved Those judge. before the offenses pending other alcohol, a carrying weapon. cocaine unquestionably and offenses
The foregoing stipulations
exhibited a
finding
appellant
court’s
the trial
reflected he
offenses and
commit felony
pattern
repetitive
traits,
maturity
and a mental
a prior history
character
possessed
addition,
In
the stipulated
rehabilitation.
he is
indicating
beyond
by
appellant
the offenses committed
evidence reflects that
above, we
In
of the
more serious.
view
increasingly
have become
erroneous in
was clearly
the trial court
say
are unable to
circuit court.
cases to
transferring appellant’s
we address
foregoing arguments,
leaving appellant’s
Before
below,
that the trial
argued
appeal,
made
objection
of fact and
findings
into evidence the
admitting
court erred by
against appellant.
in an earlier case
conсlusions of law entered
reflecting the
findings
report
Those
included a 1988 psychological
and home attention
response
probation
“had
poor
be may
more restrictive environment
and that
in a
placement
did not
report
out that the
correctly points
indicated.” Appellant
аnd the
his current
disposition
reflect
necessarily
psychological
it.1
in
notice of
taking judicial
erred
not
may
notice
agree
judicial
We
with
case. Leach v.
be taken of the record in a
separate
Assn.,
Farmers
S.W.2d 837
see also Southern
However,
Inc. v.
Wyatt,
notice
taking judicial
while
court erred in
agree
we
that the trial
issue,
error was
conclude the
we
psychological report
into
Aside from
admission
improper
harmless.
the report’s
evidence,
the stipula-
we have
discussed hereinabove
thoroughly
review of the trial court’s comments at the
briefs.
report
not
abstracted,
our
only
knowledge
and the
of what
parties’
it contains is from our
arguments in their
*6
and
the
court’s transfer
tions
evidence that we hold
cases
court. We will not reverse for error
appellant’s
of
to circuit
Co.,
&
unless
is
Bank Trust
prejudice demonstrated. Peoples
argument,
In
final
appellant argues
provisions
as
(b) (2)
(d)
conflicting,
of 9-27-318 are
and
a consequence
§
for vagueness. Basically, appellant
are unconstitutional
contends
that neither the
court nor the circuit court under these
chancery
two
to have the final
as which
should
provisions appears
say
to
one
court,
jurisdiction.
exercise
that the initial
Appellant postulates
circuit,
itbe
or
transfer
to
chancery
juvenile
could
the
case
the
jurisdiction
second court’s
to have the second
return
only
court
to
proceeding
the initial court for trial.
Although
told
he
court
believed 9- §
27-318
unconstitutionally
was
he
vague,
never mentioned the
reason,
argument he raises now. For that
it questionable
as to
event,
whether this issue was
for
In
preserved
any
appeal.
concedes
situation he
here
hypothetical
did
poses
occur
alone,
not
below and for that reason
standing
he laсks
to
raise the
(b)(2)
(d)
constitutionality
of 9-27-318. See
Burrow v.
When the special judge announced he going proceed with the transfer hearing, the defense made counsel following objection: Honor,
Your if that will be subject objec- defense tion, I would like to nоte for the that the motion to record 22,1991. transfer was filed on Whereas we had February initially motion, plans made to file an answer to the we were not afforded the length of time to proper an prepare — answer, it, nor as I understand we were tentatively set to
have a scheduled todаy. for I understand if the Court wants to ahead and hear go before, record, I feel to have compelled my it but for the objection noted. then stated that he would call up special *7 added,
transfer motion on his own motion and “so that takes care of time your problem.” hearing objection,
The commenced over defense counsel’s and the to introduce a evaluation sought prosecutor psychological juvenile. objected again The defense counsel and appellant said: honor,
Your we would to the of object introduction One, State’s Exhibit No. 1on the as this following grounds: matters, hearing has these we have not certainly sped up had a chance to review the in full detail. report My from the Code is that we are to be understanding provided three days any before such are introduced to the reports Court. Ms. has is a Merritt indicated that this of part Court’s file. I have nо of that. I do not way ascertaining have Mr. Smith’s files with me at this time. prior sum, In motion had not been set for on date, this and the defense counsel was short. He caught up thought he had ten from the of the motion to days filing respond, and, indeed, the rules for that of Some provide amount time. to of prejudice by counsel and his client was evidenced the lack time in which to review the But the real psychological report. in to the prejudice lay foreclosing counsel from responding motion to in him prosecutor’s denying transfer and time adequate his prepare case. tp
The defense counsеl before the objected hearing began renewed that at objection hearing. the end of the What else could he had done to his It is true that he had no preserve objection? witnesses present and that he the court with no names presented of whom prospective might witnesses he havе called had he been he, afforded notice. But was appropriate admittedly, unprepared due to the Failure to his case due to these surprise hearing. proffer circumstances should not be fatal to his when the appeal had, rules, under our to his case. appellant six more days develop cites civil cases to its of lack majority theory cited, In one case we held that there was no prejudice prejudice. because he had a chance to to the motion respond See summary judgment for Keenan v. argue position. Co., Transportation American River 799 S.W.2d us, (1990). In the case before had neither responded the motion transfer nor his case. prepared In a second case cited we affirmed by majority, a damage award though even had instructed the improperly jury punitive damages negligence in case. See Robinson v. Abbott, 292 Ark. Beсause the jury did not award we damages, held that this error punitive technical resulted in no prejudice. cited,
In still another case we held that a statement oral argument concerning which bank would bear a involving loss an unauthorized endorsement was not presumptively prejudicial. Wallace, Sеe Bank & v. Peoples Trust Co. *8 (1986).
S.W.2d 659 That is from thé clearly distinguishable facts of this case.
Finally, the majority cites case where the trial court entered a premature judgment, summary thereby preventing the from filing counter See affidavits. Purser v. Corpus Bank, Christi St. Nat’l
There, the trial court stated no appellant had meritorious Here, defеnse available to him. no such finding could be made by the trial court until the appellant’s counsel had prepared presented his case the statutory relating factors to juvenile transfer cases. a case
Transferring from to circuit court is a serious matter. followed, rules procedural must be especially when fundamental due is process at issue. not That was done this case. The resulting prejudice to the defendant obvious. I would remand for a new hearing.
Holt, C.J., Newbern, J., join.