*1 bеlow, that Appellant argues proof presented even the deemed admitted falls of dem short including requests, she that was enriched. She that there was onstrating unjustly urges intent, act, evidence no her situation on operative part. claims all
She thаt she did was cash check that was out made her. Her misses mark. The act argument was operative Rather, act of the check. it was her act both cashing retaining and the car and over the money refusing repaired proceeds Appellee. also
She that there was no urges evidence case, amount of in this and thus there was damages no way trial court to determine she had been enriched. unjustly reflects check Appellee’s complaint insurance $4,844.54 of the amount that he represented repairs paid. did not contest amount of the cost of the
Appellant repairs paid Moreover, she admitted that by Appellee. of the car upon delivery her, she voiced no about the of the complaint repairs. adequacy there was sufficient evidence of the Accordingly, amount of We thus affirm of the trial damages. court.
Ken SWINDLE v. BENTON COUNTY CIRCUIT COURT 05-136 211 S.W.3d522 Court of Arkansas
Supreme 30, 2005 delivered
Opinion June *3 se.
Appellant, pro Beebe, Gen., Borkowski, Mike Wilson Att’y by: Misty Ass’t Att’y Gen., for appellee. Swindle, appeals from thе circuit L. Brown, Ken appellant, Ju i c e. court’s order him to directing Robert pay st
$150 for services that were to his interpreting provided Spanish- client, Manda, Manuel was speaking who the defendant..Mr. Dejesus Swindle’s sole on is that the circuit court in point еrred holding him for of the fee. personally responsible We affirm the payment order of the circuit court. 25, 2004, at On what to have been a May appears plea on Mancia’s of theft the circuit
hearing charge court receiving, informed Mаncia’s counsel that he should the reimburse personally defender’s office of for use amount public interpreter $150. of The circuit court observed that Mr. Swindle was privately retained and noted that he was the for party responsible ensuring that the fee was Mr. Swindle the court as to who paid. inquired should receive and the circuit court payment, responded 7, 2004, the be to the circuit clerk. On September fee should paid was entered its order that Mr. Swindle personally circuit court Clerk Benton Circuit $150 for County responsible paying to his client. services for provided interpreting that was now
Mr. Swindle argues improper his with the costs of court to assess him the circuit personally law, the rules either under statutory client’s existing court, or Arkansas Constitution. regulations Aсt nor its that there is asserts nothing statute, Code Annotated 16-89-104 Arkansas (Supp. resulting § a criminal that an 2003), attorney representing contemplates of his her client. ever be assessed a fee on behalf defendant will contends that because 16-89-104(b)(2) provides Hе specifically § defendant shall not be that an criminal required acquitted fee, be true and that if a the converse should also interpreter’s fee is not the defendant defendant acquitted, required pay any He states that the statute further court-appointed for the that the can fails include authority any proposition the defendant’s He claims that assessed attorney. examined Arkansas Code Annotated 16-10-127(e)
court never § which inter- 2003), which provides procedure by (Supp. Administrative Office оf the could be through paid preter whether was he maintains that counsel Finally, privately Courts. of whether the attorney
retained is irrelevant question the fee. be held responsible personally
While not raised we first consider the question *4 has to the circuit of whether Mr. Swindle standing challenge fees him as of Mancia’s criminal court’s order assessing against part We hold that Mr. can that order. case. appeal
Blackletter law that an available provides appeal case the to those who were trial court. Seе people parties 2d (2004). Review 264 Notwithstanding Appellate § Am. Jur. rule, it been that in a has “widely general recognized proper in a to interested sufficiently permit a nonparty may judgment 5 Am. 2d him or her take from it.” Appellate Jur. the a have (2004). Review 265 For might еxample, nonparty § immediate, “direct, he or she has a and substantial where he or has been the where interest” which by judgment, prejudiced decision, or he or she has has where she been by “aggrieved” addition, Id. affected” a “sufficiently judgment. have
has been observed that while attorneys standing them, orders sanctions they imposing upon may appeal “only awards, costs, those or sanctions he for which or she is directly 2d liable.” Am. Review 266 Appellate (2004). § Jur.
A review of Arkansas’ reveals that this jurisprudence court has adhered to the rule on general that an standing appellate court cannot act taken one not upon party action before trial $3,166,199, court. InSee Re: Nonetheless,
See The second
arises where
exception
any appellant, though
has
interest
party,
affected
pecuniary
court’s
Allen,
of the mаtter below. See id. See also In Re:
disposition
In the case at Mr. Swindle has a clearly pecuniary interest in the circuit court’s order costs Mancia’s assessing reason, him interpreter against For that we conclude he personally.
has
as а
standing
is entitled to
review. See
nonparty
$3,166,199,
Re:
5 Am.
2d
supra;
Review
Appellate
supra;
§
Jur.
Beitv.
Probate&
Court
Family
Mass.
Mr. Swindle: Well, *5 you’re
The Court: attorney. Honor, I Your filed a motion for appoint- Mr. Swindle: ment of an Well, But this is a that’s fine. privately
The Court: — counsel, the inter- we’ll you’re provide retained for not but that doesn’t mean you’re responsible preter reimbursement. client; that is correct?
Mr. Swindle: My — Well, the one the one that you’re you’re The Court: I’m to I’ll say going that’s get paid. just responsible hold you responsible. that
Mr.
do
to?
Who
Okay.
Swindle:
it to
circuit clerk.
Pay
Court:
Thank
Your Honor.
you,
Swindle:
held that in order
an
This court has
preserve
to the circuit
there must be an objection
argument
appeal,
error
is
the court of the
court that
sufficient
particular
apprise
1,
State,
See,
v.
Under Brummett, v. Mr. Swindle was State necessary. objection which concerned State S.W.2d held court was this court that trial a sentencing hearing, when it of the State’s objected adequately apprised position for our We in that reasоn sentence. observed regard rule so that a trial court is given contemporaneous-objection counsel’s with know the reason for disagreement opportunity its decision. See State the court’s to making prior proposed Brummett, v. This court has required contemporaneous supra. existence of at bench trial to challenge prior
objection status for the convictions establish habitual-offender purpose defendant. See sentencing Mackey at held first We have further objection
S.W.2d 359 (1997).
*6
rather than
was suffi-
opportunity,
contemporaneous objection,
cient to
an
in-court identification
preserve challenge
during
State,
bench trial.
See
objection; any objection opportunity. all. Swindle failed to at Because the object circuit court was never of Mr. Swindle’s to the apprised objection assessment of him, we can conclude that the circuit against court was never aware that there was of error his any possibility because Mr. Swindle failed to ruling. Accordingly, object him, circuit court’s assessment of fees the issue is not against for our review. preserved
Affirmed. C.J.,
Hannah, concurs. Chief Justice, concur in the Hannah, concurring. Jim affirmed; conclusion that be court should how- ever, I base decision different my than those set out grounds This must be dismissed majority. because a criminal appeal defen- dant’s has no right in a criminal case. attorney appeal Any rеmedy an have from an act or order attorney may entered him or her in a criminal case must in this court sought original based on this court’s control of the circuit court. supervisory below was one of conviction of Swindle’s client Manuel on a Manica theft Dejesus charge by receiving. An from this conviction would appeal concern the necessarily decision of or the sentence received Manica. The guilt right ain criminal conferred Ark. appeal R. P.—Crim. App. 5, and is limited to an from a conviction “a for misde appeal or .. 545-46, meanor .”1 SeeEcklv. felony.
S.W.2d 428 (1993). Swindle was not convicted a misdemeanor and has no felony to an in this criminal case. cases, civil
Citing holds that because order majority concerns order to attempts money, Swindle has a interest the criminal case and must be There is no constitutional from a proceeding. criminal McDonaldv. (2004). 146 S.W.3d The right is conferred rule in this State. App. Ark. R. P. — Crim. 5. do cited not support The civil cases
allowed to appeal. $3,166,199, 987 S.W.2d Re: majority’s holding. the interest determined ordered appealed in certain funds without appellant had providing appellant *7 Allen, 800 304 Ark. S.W.2d to be heard. In Re: opportunity into a funds order to concerns an (1990), nonparty deposit 715 where the court to of рrivate hospitalization registry Allen, this had for Allen. no room the Arkansas State Hospital Perrin, Ark. v. 240 cited to ArkansasState Commission court Highway we discussed 287 where (1966), right S.W.2d a is to the casebecause when a not a review party person appellate Perrin,we on court’s relied is order. person aggrieved Frenken, where we (1908), v. 87 Ark. S.W. Brown stated, interest is “A one whose pecuniary aggrieved party decree or one whose of right affected property may directly Brown, Ark. the decree.” at 162 be established or divested by Sweet, Mass. This court in Allen v. 194 (1843)). (quoting Wiggin Scott, 42 S.W. also cites to Ouachita v. BaptistCollege not a we held that Ouachitawas where although party action, in it had a of court to this probate had not had not been because Ouachita probate proceeding court,” a in and there was no other because remedy. “given day Ouachita, Ark. at 351. Swindle has no of has of an action in this court. remedy original by way court has allowed
I find no criminal casewhere this
has
in this case
somеone who
interest.
remedy
was one
this court
of
petition
original
way
of
lies
correct
errone-
a writ
certiorari. “Certiorari
proceedings
of
there is no other
ous on the face
the record where
adequate
and it is available to the
court in
exercise
remedy,
court that is
control over
no
lower
proceeding
superintending
mode
been
where
other
of review has
illegally
provided.”
620, 621,
v.
Swindle should petition I also fearful that criminal and civil as am mixing precedent case result in confusion does in this where majority to file and criminal defendants notices attorneys begin attempt the same criminal issues. would differing affirm, I would do so based on Swindle’s failure file but this under court’s action in court control original supervisory of the circuit courts.