*1 R obert I dissent in Brown, dissenting.
L. Justice, stated in my dissenting the reasons mase Herndon, State Arkansas date. handed down HERNDON of Arkansas v. Brian STATE CR 05-612 of Arkansas
Supreme 2, 2006 delivered February Opinion March 9, 2006.*] denied [Rehearing * grant rehearing. would BROWN,J., *2 Gen., Beebe,
Mike David R. Sr. Ass’t Att’y by: Raupp, Att’y Gen., for appellant.
No response. The State brings Imber, Annabelle Clinton Justice.
direct
the
from
circuit court’s order
the
appeal
dismissing
Herndon,
State’s case
Brian
against
and
the State’s
Appellee,
denying
motion for
The Arkansas Game and Fish
injunction.
Commission
had
(AGFC)
Herndon in the district court
awith violation of
charged
15.05,
fine,
costs,
$1000
AGFC
court
Regulation
and
seeking
court,
injunction.
his conviction in district
Following
Herndon
court,
to the circuit
where
from
appealed
special
prosecutors
deputy
AGFC continued with the
The circuit court dismissed
prosecution.
the
charge,
AGFC
15.05 was
concluding
Regulation
preempted
Act,
federal law
the
by
found in
Bird
Migratory
U.S.C.
Treaty
703, et
federal
The State filed a
seq.,
accompanying
regulations.
of
notice
also
timely
AGFC
writ of
certiorari
appeal,
pursued
Herndon,
court. See Arkansas Game &
Fish Comm’n
180,
As a threshold we must determine whether subject-matter of this case. It is well settled that appeals the State are by in the narrowest of set instances — forth in Rule of the Arkansas of Rule Procedure Appellate Criminal. Rule states: 3(b) Specifically,
(b) Where an other than an appeal, interlocutory is desired appeal, on the behalf of state following either a misdemeanor felony the prosecution, shall file prosecuting a notice of attorney appeal within after thirty days entry of a final by order the trialjudge. - rule, P. R. Crim. 3(b) Under this the appeal by State is limited to instances a misdemeanor or following felony In prosecution. we concluded that we lacked subject-matter jurisdiction
consider the State’s from the circuit court’s dismissal of a case of an involving violation license,
was cited the without a an offense under AGFC 3.02. She entered a prohibited of not plea Sheridan, but following for the of City in Municipal guilty of trial, and assessed costs $50 and fined her found her guilty judge moved to Court and Grant Circuit County She $72.25. appealed had Officer Hartness dismissed because citation her have the against Commission, of in direct contravention been elected court The circuit Constitution. the Arkansas Amendment body required the Commission that vote by agreed Hartness, that had not Officer transpired. employment Hartness such as Officer court held that employment personnel Commission, and it dismissed charges was not delegable by of Arkansas The State violative of the Arkansas Constitution. Procedure under Arkansas Rule Criminal dismissal appealed *3 -P. 36.10, rule in Ark. R. version of the now located App. an earlier concluded, 3(b). Crim. an the State following refers to appeal
Clearly, [Rule 36.10] neither clearly, either a misdemeanor or felony prosecution. Just is a violation of casebefore us. What is involved is involved A for without a license. and 3.02 Regulation Game Fish it, in a a way carries with penalty, violation of that $1,000. $50 fine of between law, of offense from a “violation” is a separate category Under state offense that carries and is defined felony misdemeanor civil See Ark. Code Ann. with it a fine or forfeiture or penalty. In are concerned the instant 5-1-108 (Repl.1993). one established by agency with a violation but with statutory event, is not a misdemeanor or In violation which are the two felony, categories prosecution those State. generate appeal under there no basisfor the State to prosecute Because is Mazur, 36.10, v. must dismissfor lack State ofjurisdiction. Rule Edwards, State supra; supra. dismissed.
Appeal
642-43,
Ark. at
As stated Herndon was cited for violating 15.05, which states: Regulation Regulation Game and Fish 15.05 shall unlawful to release into the wild any native or non-native of wildlife species without prior Commission. approval $500 $1000.00 PENALTY: to Under the maximum general hunting regulations, penalty an AGFC is a fine to $1000 and a term up of up one year jail:
Game and Fish Commission 01.00-H2 conviction, Upon courts of are competent jurisdiction $1,000.00 a maximum impose monetary penalty up *4 violation of any Arkansas Game and Fish Commission regulation. Further, all courts of shall be competent jurisdiction provided additional to revoke authority hunting fishing as a privileges for conviction of penalty Game and Fish any Commission regula- tion and authority to order the incarceration of convicted violators for (1) toup year.
Therefore, the issue is whether violations of AGFC regulations as misdemeanors so as to allow a qualify state under Ark. R. -P. Crim. 3.3 Under Ark. Code Ann. 5-l-108(b) (Repl. § the 1997), has defined “violations” as legislature follows: 2 Regulation promulgated 01.00H was in 1988. Under an amendment in adopted 1990, the was added that imprisonment provision as this court did in State v. we must decide whether the Just follows a misdemeanor or in order to decide whether felony prosecution of‘jurisdiction State’s In the is jurisdic- short, issue here “one to determine appeal. the any designation appearing (b) statutef[ 4] Regardless offense, of this code a violation for purposes an offenseis
defining that sentence other offense no defining provides if the statute forfeiture, fine, is upon or civil fine or penalty than a or conviction. contrast, a “misde- 1997). 5-l-108(b) Code Ann (Repl. § to include Ann. 5-1-107 in Ark. Code is defined meanor” §
following: if: is a misdemeanor
(a) An offense code; It is so (1) designatedby code, a except a statute not is so designatedby part (2) 5-1-108; or provided § a imprisonment and sentenceto It is a
(3) designated felony, conviction. authorizedupon Based added). 1997) 5-1-107(a) (emphasis
Ark. Code Ann (Repl. conclude that we must 5-l-107(a), of section language plain can that carries a violation of any penalty because regulation is not felony, such offense designated include imprisonment is a “misdemeanor” and an AGFC the act of violating set case forth holding While a “violation.” fine, this was an was for the AGFC violating only penalty Rather, for the law. violating statement of penalty incorrect fine, revocation or all of the following: AGFC regulation license, of a convicted violator or incarceration of hunting 01.00-H. & Fish Commission Ark. Game Reg. one year. up cases, overrule State For all future violations of for the to the extent it stands proposition supra, misdemeanors. They clearly do not AGFC regulations qualify Nevertheless, 01.000H. do based on AGFC Regulation cited Herndon was Lee District County and thereafter found guilty by 15.05 *5 ” case.’ from‘jurisdiction to hear the merits of the Merez v. distinguished tion,’ Squire 184 353 114 S.W.3d 174, Ltd. Partnership, 4 5-1-102(20) 1997), term includes the (Repl. “statute” Ark. Code Ann. Under state, of this of a subdivision statute of ordinance state, Constitution any any political agency state. of this rule lawfully adopted 190 conviction,
Court of
theAt
time of his
controlled and thus the
did
violation
Bickerstaff
as misdemeanor. Because Mr. Herndon was entitled
qualify
our
v.
State
it would
fundamen-
upon
rely
ruling,
Bickerstaff
unfair
of misdemeanor conviction
tally
impose
possibility
State,
743,
on him at this
Oliverv.
323 Ark.
918
690
S.W.2d
point.
dictated
(1996) (fairness
of
where
application
holding
prospective
defendant could
relied on
cases
justifiably
overruled);
Wiles,
340,
v.Wiles
289 Ark.
Appeal
Brown, J., dissents.
Robert L. Brown, I dissent Justice, dissenting. because has handed down an majority advisory opinion solely 641, overrule a State v. S.W.2d without the duck at issue. resolving hunting dispute overrules our simply purposes deciding — in future cases not for the case at purposes deciding hand. a case that does not Overruling decide a case pending clearly on an academic issue. We have advisory never done that before. We enter troubled waters when we edicts engage legal issuing apart from the case before us. deciding This court’s staunch position against advisory opinions 1995, said,
stated when we “. . . succinctly this court does not future and does not anticipate litigation issue advisory opinions.” 201, 203-04, Wright Keffer, 5 The rubric the dissent would mean that “advisory opinion” espoused by effectively this court’s decision could be overruled a retroactive holding. of our Such an would be to our case well-established application analysis contrary through law that seeks to fairness aof new promote prospective application interpretation State, Wiles, State, supra; supra; Oliver Wilesv. or rule. supra. Rhodes
191
412,
850
Ark.
206 S.W.3d
also State
See
(1995).
Fudge,
138,
Titsworth,