State v. AdkissonState v. Adkisson
- Reporters:
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- Before:
- Byrd
The sole issue on this petition for writ of certiorari by Jim Guy Tucker, the Pulaski County Prosеcuting Attorney, is whether the trial court has jurisdiction to hear a motion for new trial after a notice of appeal, pursuant to Act 333 of 1971, has bеen filed but before the appeal has been docketed in this court.
The record shows that Joe Franklin Calva, Larry Griffith and O. G. “Preacher” Mathis were found guilty of keeping a gambling house contrary to
Prior to Act 333 of 1971, criminal appeals were governed by the provisions of the criminal code of 1868 as amended. Appeals in civil cases were controlled by the provisions of Act 555 of 1953. Aсt 555 modernized and simplified the procedure for taking an appeal and obtaining review of alleged error. It also permitted a review of an alleged error without the technical requirement that exceptions be saved and that alleged errors be brought forth in a motion for new triаl. In ruling on the identical issue here involved — i.e., jurisdiction of a trial court follоwing the filing of a notice of appeal in a civil case— in Andrews v. Lauener, 229 Ark. 894, 318 S. W. 2d 805 (1958), we said:
“In construing Act 555 of 1953, we note that the General Assembly said: ‘If an appеal has not been docketed in the Supreme Court. . .’ (Sec. 27-2106.1); ‘. . .and if the aсtion is not yet docketed with the appellate court. . .’ (Sec. 27-2107.2); ‘The record on appeal be filed with the appellate court and the appeal there docketed. . .’ (Sec. 27-2127.1); ‘Where the Supremе Court has acquired jurisdiction of a cause, but it is made to appeаr that the record is incomplete for want of documents, exhibits, or a bill оf exceptions, and the trial court has lost such jurisdiction. . .’ (Sec. 27-2129.2). In our opinion there is a clear legislative intent in this Act that after notice of аppeal is filed the trial court retains jurisdiction of the case until the rеcord (under proper circumstances a partial record, Nоrfleet v. Norfleet, 223 Ark. 751, 268 S. W. 2d 387) is filed with this Court and the appeal is docketed in this Court, and we so hold.”
The procedure set up in Act 333 of 1971 for criminal appeals follows closely the civil appeal procedure estаblished by Act 555. In fact the emergency clause of Act 333 provides:
“WHEREAS, it is deemed that criminal appeals should, so far as is feasible, be consistent with the statutes governing civil appeals and, WHEREAS, injustice sometimes results from the usе and application of the present statutes applicablе to the appeal of criminal cases and, WHEREAS, some confusion exists as to the manner in which criminal appeals are perfectеd, this Act is necessary for the protection of a public peace, health and safety, and an emergency is hereby declared to exist and this Act shall be in full force and effect from and after its passage and approval.”
Petitioner cites cases from other states and federal courts in support of his position that the trial court lost jurisdiction uрon the filing of the notice of appeal. However, becausе of the expressed legislative intent that appeals in criminal cases, so far as feasible, should be consistent with civil appeals, we find that we are bound by the holding in Andrews v. Lauener, supra, and that the petition must be denied.
Petition denied.