*1 636 (1994). 888 S.W.2d Cos. Silvey Riley, judge. level, the trial we at did not raise argument Mr. Stilley Because reasons, it now.1 For foregoing from addressing are precluded affirm. we
Affirmed. v. Beatrice DAWSON of Arkansas
STATE CR 00-935 of Arkansas Court
Supreme 15, 2001 delivered February Opinion denied March for rehearing 2001.] [Petition We note that Ark. Code Ann. 16-115-108 § may applicable question. The statute provides: proceeding writ of manda- During the for a any upon petition pendency having jurisdiction . . make such mus or the court . temporary prohibition, damage injury, waste, or orders as proper prevent appear expedient whatsoever kind. Id. *3 Gen., Gen.,
Mark Valerie L. Ass’t Pryor, Att’y by: Kelly, Att’y for appellant. Becker,
Daniel D. for appellee. JIM Hannah, or, The State of Arkansas Justice. alternative, a writ of certiorari petitions Appel *4 lee Beatrice Dawson’s order of in a Saline Circuit acquittal County Court bench trial on assault Dawson was third-degree charges. of convicted the in Benton Court charge and Municipal appealed to Saline Circuit Court from that County finding.
Facts 25, 1999, The case was heard on the Benton May Munici- Court, and the court found Dawson of pal guilty third-degree assault and entered that Dawson judgment day. con- this appealed 25, 1999, viction to the Saline Circuit Court on County filing June the of notice and that was appeal Trial set on transcript day. July 1999, but neither nor Dawson her attorney The circuit appeared. court dismissed the case for “lack of originally prosecution” Dawson, but then set this order aside on of motion Dawson who claimed that she and her were not notified trial date. attorney 10, 2000, on and bench trial court held a circuit January
The was entered on “not January Judgment found Dawson guilty.” entered 2000. of was on an Order January and Acquittal of to Rule a Notice the State filed Appeal pursuant same day, That Criminal, con- Arkansas Rules of Appellate 3(b) Procedure — conse- collateral the trial court erred considering that tending record. on Dawson’s of a conviction employment quences 23, 2000, filed March the State a months later on Almost two Remand Court on and to to Vacate Judgment Municipal Motion and for Dawson’s from court municipal request that the basis Inferior filed to Arkansas novo was timely pursuant trial de on was filed the because it 9(a), thirty-first day Court Rule Dawson on the court responded of municipal judgment. entry was not that the State’s motion to vacate arguing April court lacked to the jurisdiction filed and grant timély filed of A because State had a notice already appeal. motion on The trial court was held this motion 2000. hearing June in written order that denied the State’s motion a filed day. 13, 2000, filed from the On State notice June vacate, to that the trial court’s denial its motion trial contending erred in to vacate its order because the trial failing acquittal no due court had Dawson subject-matter jurisdiction try Dawson’s untimely municipal court.
I. Direct the State Appeal by In this first that the issues State argues satisfy under Arkansas Rules (c) 3(b) requirements to allow to hear this court Procedure —Criminal Appellate that this allow it to make State’s State appeal. requests attack on void collateral Arkansas acquittal pursuant Civil Procedure which this 60(a), Rule of court would applying for first time to criminal The State attempts proceedings. relief to a defendant’s to seek ability analogize postjudgment in Rule 37 relief writ of habeas corpus, petitions petitions relief, if the defendant afforded such argues *5 be also. The that would should such a be argues ruling the to correct and uniform administration of the criminal important Dawson law. that this should not be considered responds appeal therefore, and, it turns on the of this because facts case does specific 688 involve of the criminal rules with interpretation widespread Furthermore,
ramifications. Dawson that State are argues appeals not allowed to show that the trial erred. merely
Arkansas Rules of Procedure —Criminal 3(b) Appellate state: (c) (b) Where other an than an interlocutory appeal, on the desired behalf of state following either a misdemeanor or felony prosecution, the shall prosecuting attorney file notice of within (30) entry after of a final the appeal thirty days by order trial judge. (c) When a notice of filed to either subsec- appeal pursuant rule, (a) (b) of this
tion the clerk the court in which the to be took shall sought appealed place prosecution immediately the cause trial record to be made and transcript transmitted to the attorney delivered the general, attorney, to prosecuting him delivered the If the attorney general. attorney gen- eral, record, the trial is satisfied that has inspecting error been state, committed the prejudice and that the correctand administration the criminal law review the requires uniform Supreme Court, he take the the appeal by filing transcript of trial record with clerk of Supreme Court within sixty (60) days fifing notice appeal. added.) Before the merits of the claim
(Emphasis
State’s
addressing
case,
in this
the court must first decide whether
this issue is properly
under
before us
State v.
3(c).
343 Ark.
Thompson,
S.W.3d
State v.
Stephenson,
S.W.2d
(1997).
the court must decide whether
Specifically,
correct
uniform administration of
us to
justice
review this
requires
point.
This court’s review of
State’s
is not
cases
limited to
appeals
would establish
State v.
precedent.
330 Ark.
Thompson;
Gray,
(1995). does not issue of present interpretation ramifications, the criminal rules with has widespread held that such does not involve correct and uniform Harris, administration of the law. State v. are not allowed (1994). Appeals merely demonstrate fact
that the trial court erred. State v. Spear Boyce, S.W. 788 Where the resolution of issue on turns *6 case, not one the is requiring the facts on the unique ramification, with rules widespread of our criminal interpretation McCormack, State. State the is not matter appealable and the Guthrie, State 34 S.W.3d Howard, it is clear that for a direct basis appeal, the State’s In reviewing attack allow it to collaterally that this court is the State requesting Rule Ark. R. P. 60. based on Civ. in criminal cases state: 60(a) (b) errors or mistakes or to To correct Limitation.
(a) Ninety-Day or vacate modify the court justice, may of miscarriage prevent the court or any party, of order or decree motion a judgment, its having within of ninety days notice to parties, with all prior clerk. been filed with the (a) subdivision Errors. (b) Notwithstanding Clerical Exception; time, rule, notice to all at with any prior the court may orders, decrees, or mistakes in judgments, correct clerical
parties, from arising oversight record and errors therein other parts of an such mistakes may During appeal, or omission. pendency is docketed in the court appellate before the appeal be so corrected be so corrected may the appeal pending and thereafter while court. of the appellate with leave 27, 2000, in oh curiam Order This rule was revised by January per rule notes that as The to the to case law.1 commentary response amended, modified version of the is a prior subdivision (a) slightly that the court states the rule Subdivision (b). (a) general subdivision decree or with notice to all modify judgment, prior parties, may, to “correct its with clerk order within filing ninety days (b) 60(a) stated: amendment, Prior to the January judgments, orders other (a) mistakes in or ClericalMistakes. Clerical parts arising oversight omission be corrected from the record and errors therein may and after the motion of at time on its own motion or on the court any party any During such of an if as the court orders. notice, such pendency any in the is docketed mistakes be so corrected before appellate may with leave of pending be so corrected and thereafter while the may court. appellate (b) error or mistake or Limitation. To correct any prevent Ninety-Day miscarriage justice, circuit, or order of a a decree chancery probate with or without of the court or modified or set aside on motion any party, clerk. having been filed with the within of its notice to days any party, ninety errors or mistakes or to prevent miscarriage justice.” subdivision (b) revised now states an from expressly exception limit “clerical mistakes” errors ninety-day “arising *7 omission,” or which at oversight corrected time with may any notice to the prior parties. Mazzanati, is amendment consistent with Lordv. 339 Ark.
25,
Rule a restatement Arkansas’s well-settled merely court to enter nunc empowering trial tunc to pro truth, cause the record to whether in or civil speak criminal State, 912, cases. See Lovett v. 267 Ark. State, 872, v. McPherson Ark. S.W.2d 187 63 282 Richardson State, 167, v. 169 Ark. 367 273 S.W. (1925). we recently Just a trial upheld court’s to enter an order nunc in a authority tunc pro criminal case when than more a a half had year since the passed original had been filed and judgment mandate had issued. McCuen State, 631, v. 338 Ark. 999 S.W.2d682 in (1999). While we noted McCuen that Rule itself does not 60(a) refer specifically or apply case, it criminal is obvious Rule 60(a) does to civil apply cases, and its plain language same rule adopts longstanding — utilized in all cases that trial courts may correct clerical errors at circumstances, time. In these any a trial correct power court’s truth, mistakes or errors is to make the record speak the not to but make it did what it not but speak to have speak ought spoken. [Citations omitted.]
Lord,
However,
Lord,
Regardless Rule has 60(a) (b) been or ever cases, could be to criminal behind applied theory the rule has See, been McCuen; to criminal cases. applied Lovett e.g, State, v. 267 Ark. (Ark. S.W.2d 683 1979); McPherson App. State, State, 63 S.W.2d 282 (1933); Richardsonv. However, Ark. 273 S.W. relief under the current and the within the ninety days, be granted 60(a) only of the ninetieth passage to modify expires court’s power Brisson, 744 S.W.2d Ins. Co. See Cigna day. ; Little Rock Ragan, (1988) City of . (1989) in Rule time limit are noted to the ninety-day
Exceptions
errors” in
allows “clerical
“judg
Rule 60(b)
and Rule 60(c).
60(b)
errors
record and
ments, decrees, orders,
or other parts
at
omission” to be corrected
any
from oversight
therein arising
if the
or with
appellate
time
permission
McCuen,
a trial court’s
this court
In
upheld
example,
pending.
and a half after
original
an order over year
modification
The correction
had issued.
filed and mandate
had been
judgment
in the
McCuen, however, was made to include
judg
language
*8
in
court but
McCuen
fine levied
open
ment
a
against
reflecting
is one
Such a correction
in
written order.
was omitted
the
which
a
to correct
60(b)
the current Rule
allowed under
that is specifically
truth,
to
but not
record
the
error” to make “the
speak
“clerical
to have
but
spoken.”
it
what it did not
ought
make
speak
speak
addition,
to
allows a
Lord,
In
Rule 60(c)
judgment
Ark. at 29.
here.
not
under certain circumstances
applicable
be set aside
Here,
this court to allow its
the
is asking
State
“void
others to
acquittal”
this case and
challenge
with the
There are three
to Rule
or
60(a)
(b).
problems
pursuant
First,
relief under
the State
asking
specific
State’s position.
relief
such
may only
or its theoretical
60(a)
Rule
equivalent,
of the
of the
judg
the court within ninety days
entry
granted
Here,
the
was entered by
Dawson’s
ment.
judgment
acquittal
later,
Almost
the State
2000.
sixty days
circuit court on January
court,
order on March
2000.
filed its motion to vacate that
however,
until
decision on the motion
did not issue its
June
over
after
judg
five months and well
ninety days
almost
such,
utilize Rule 60(a)
the State’s
to
was entered. As
ability
ment
Slaton, 330 Ark.
Slaton v.
See
or its theoretical equivalent expired.
Cook,
Second, our case law allows modification of an order only under the current Rule correct 60(b) “to mistakes ninety days truth, make but or errors to the record not to make speak [or] Lord, it did not to have what it but ought speak speak spoken.” Here, Ark. at 29. State is not to requesting correct an error or mistake in the itself “to the truth” as it judgment speak occurred in the but instead to proceedings, change court’s actual order “to it what it not make did but speak speak to have Rule its theoretical ought 60(b) was spoken.” equivalent use, intended for such to allow the to State use it in criminal cases for to but correct one limited any purpose reasons in 60(b) Rule would be to (c) rule. misapply to use
Finally, here would allowing act to State’s cases only ability those expand beyond allowed under Ark. R. P. —Crim. 3. Rule 3 that the App. requires State show that there is a for the reason allow Rule in this 60(a) case would the State apply automatically give reason to time a is entered in appeal every judgment acquittal circuit court without that it to show is for the “correct and having uniform administration of the criminal law.” This has stated:
There is significant and inherent between difference criminal defendants and those brought by on behalf of the brought State. The former is a matter the latter right, whereas is not Constitution, derived nor is it a matter but is right, granted pursuant Rule 3.
Guthrie,
II. Writ Certiorari of In its second on the State that if a point direct appeal, argues allowed, is not this court should appeal consider this matter as a for a writ of petition certiorari. The State the writ is argues proper because the circuit court was without wholly jurisdiction. State asserts is so because the record was filed in circuit court within thirty as Arkansas Inferior days Ct. R. by required The State that the 9(a). record indicates that Dawson argues clearly
693
late,
for
too
and this case is
a writ of
her
proper
lodged
appeal
the writ is not
because the
certiorari. Dawson
responds
proper
such as
a motion to
State had other
remedies
presenting
adequate
a motion in
to enforce its judgment,
filing
municipal
9, 1999,
dismiss the
to the
circuit court to
objecting
August
filed,
that the
order
the circuit
was
indicating
timely
the timeliness issue in the first notice of
from the
raising
order,
of
circuit court’s
a writ
prohibition
seeking
prevent
circuit court from
review of the
proceeding,
diligently seeking
Dawson
that the
of
issue.
State’s lack
jurisdiction
argues
diligence
in other
failure to
the matter
now
challenge
ways
precludes
for a writ
State from
of certiorari here.
asking
A writ of
lies
certiorari
where it
only
apparent
manifest, clear,
the face of the record that
been a
there has
plain,
discretion,
of
there
no
abuse
rem
gross
other adequate
Comm’n,
Arkansas
State Claims
Ark.
edy.
970
Hanley
S.W.2d 198
These
when
(1998).
claims
principles apply
petitioner
that the
court did
lower
not have
jurisdiction
hear
claim or to
issue a
Id. The court will
a writ
particular type
remedy.
grant
certiorari
when there
is a lack
act in
excess
only
jurisdiction,
record,
on the face of the
jurisdiction
are
proceedings
Co.,
erroneous on
face of the record.
Constr.
Inc. v.
May
Ark.
S.W.3d 345
Thompson,
Communi
Cooper
Ct.,
ties,
Inc. v. Benton
Cir.
336 Ark.
694 under for filing has held that thirty-day requirement
This no court has the circuit and jurisdictional, 9 is mandatory Rule 84, State, Ark. v. 322 Lineberry untimely appeals. authority accept 599, London, Ark. 308 v. Bocksnick City 705 907 S.W.2d 135, Edwardsv. City Conway, 267 (1992); 825 S.W.2d is, of a notice of appeal filing The (1989). timely 583 777 S.W.2d 1, State, Ark. 871 v. 316 been, Ottens has jurisdictional. and always Larue, 185 Ark. 593 S.W.2d Larue v. 329 (1994); S.W.2d a court to or authority is the Because power jurisdiction merits, lack of subject-matter jurisdiction on its a case hear even for the either at time by party, be raised any defense Smith, Ark. v. Ibsen, Young time on first appeal. supra; also Ottens, Subject-matter jurisdiction supra. S.W.2d motion, and this court its own court on raised before this bemay State, Ark. v. cases. See so in criminal Simpson has done State, Ark. 715 S.W.2d Howard 475 (1992); 837 S.W.2d State, 553 (1983). 657 S.W.2d Coones 440 (1986); 9 and juris Rule subject-matter case law regarding Our — n from jurisdiction an untimely precludes is clear diction hear the case. If a court court to in the established appellate being Ottens, In a writ of certiorari is proper. without acts jurisdiction, under Rule 9 of the record that the untimely filing court found to hear circuit court divested the of jurisdiction such, here and of certiorari is a writ proper court. As municipal without circuit court was wholly because shall be granted the1 Therefore, de judgment case novo. try jurisdiction Ibsen, enforceable. valid and supra. court remains municipal of Certiorari Writ granted.
BROWN, in dissents in concurs J., part. part; in Brown, dissenting concurring part;
ROBERT L.
Justice,
the basis that the
judgment
in
The State appeals
part.
void due to lack of subject-
for Beatrice Dawson
of acquittal
and that this court should
matter jurisdiction
under Arkansas
the void
a collateral attack on
judgment
permit
refuses to
correctly
60(a).
majority
of Civil Procedure
Rule
See Ibsen Plegge,
to criminal
60(a)
proceedings.
apply
State, 338 Ark.
McCuen v.
686 (2000);
15 S.W.3d
682 (1999).
*11
however, then
forward and
majority,
goes
permits
same
State to
result
accomplish
for writ
by granting petition
attack
order of
I do
certiorari
not
collaterally
acquittal.
agree
with
for this
In the
certiorari
this court
been
has
using
purpose.
past,
in
resolute
that certiorari
not
used as a substitute for
holding
517,
v.
Arnold
343 Ark.
It true that most of these cases deal with for petitions certiorarifiled before an was But that is appeal ripe. exactly Certiorariis available point. to correct jurisdictional defects or gross abuses discretion while the case is It should not be ongoing. as a vehicle for available an order of collaterally attacking acquittal after that final order has been entered and time for has Indeed, the State cites no passed. for this. authority allowing circumscribed under narrowly are Rule 3 Rules Procedure —Criminal. The Appellate majority opinion a new avenue for provides State reviews of acquittal and, so, of Rule 3 doing expands scope What it considerably. could not do under Rule we allow it to do certiorari.It appears clear that this was not filed Dawson in timely But court. it that clear the State did equally challenge trial, defect until jurisdictional and the time for acquittal, motions had posttrial from the Double expired. Apart this, in all it Jeopardy implications the State was not appears and, thus, diligent forfeited its right petition extraordinary relief. reasons,
For these I dissent respectfully from the decision the writ of certiorari. granting