J.C.S. v. State
| Decision Date | 11 February 1999 |
| Docket Number | No. CR,CR |
| Citation | 985 S.W.2d 312,336 Ark. 364 |
| Parties | J.C.S., Appellant, v. STATE of Arkansas, Appellee. 98-1028. |
| Court | Arkansas Supreme Court |
David J. Potter, Texarkana, for Appellant.
Winston Bryant, Attorney General, Vada Berger, Assistant Attorney General, Little Rock, for Appellee.
On December 17, 1997, appellant, J.C.S., pleaded nolo contendere to two counts of sexual abuse in the first degree involving two minor children. The court sentenced appellant to three years' probation and a one-thousand dollar fine pursuant to the first-offender act, Ark.Code Ann. §§ 16-93-301--16-93-305 (1987 & Supp.1997) (Act 346 of [336 Ark. 365] 1995). An order reflecting the trial court's judgment was entered on December 29, 1997. Appellant now seeks to obtain our review to determine whether this sentence triggered the provisions of the Sex and Child Offender Registration Act of 1997, codified at Ark.Code Ann. §§ 12-12-901--12-12-920 (Supp.1997) (Sex Offender Act), and required his registration under that Act. We cannot reach the merits of this issue on review, and affirm.
The record does not disclose any effort by appellant to raise this issue during the proceedings in the two trial dockets, Nos. 96-120 and 96-121, or by any posttrial motions following the sentence. Arkansas Rule of Criminal Procedure 33.3 provides in relevant part:
A person convicted of either a felony or misdemeanor may file a motion for a new trial, a motion in arrest of judgment, or any other application for relief, but all motions or applications must be filed prior to the time fixed to file a notice of appeal.... A copy of any such motion shall be served on the representative of the prosecuting party.
The provisions of this procedural rule apply to the circumstances of the sentence in this case. We have determined that a trial court did not err in denying a motion based on an assertion that a prosecuting witness would recant his testimony, when that motion was not reduced to writing and filed as required by this rule. Newberry v. State, 262 Ark. 334, 557 S.W.2d 864 (1977). No pleadings were filed in the trial court to challenge the applicability of the Sex Offender Act to the sentence imposed.
Appellant had thirty days from the entry of the sentence on December 29, 1997, to file such a motion, or to file a notice of appeal. Ark. R.Crim. P. 33.3. Appellant failed to file a motion seeking resolution of this question by the trial court, nor did appellant file a notice of appeal until March 24, 1998. The challenge to the trial court's sentence in docket Nos. 96-120 and 96-121 was untimely.
Rather than filing a motion seeking to obtain a ruling on the question whether the sentencing order under Act 346 triggered the applicability of the registration provisions of the Sex Offender Act, it seems that the appellant may have inquired informally about the applicability of the registration statute. Although the record does not reflect any written pleading seeking a resolution of that question, the trial court sought an advisory opinion from the Attorney General on the matter.
In a letter dated December 29, 1997, and file-marked December 30, 1997, the circuit court requested an opinion from the Attorney General as to whether an individual sentenced to "five years [sic ] probation under Act 346 for sexual abuse in the first degree" had to register under the "Sex Offender Act." The trial court wrote that, "His attorney does not think he has to register as a sex offender since Act 346 says there is not a conviction." The letter does not refer to appellant and does not indicate that copies of the letter were sent to appellant's counsel and the prosecuting attorney. There is no indication that the sentence entered on December 29, 1997, was stayed or otherwise modified as a result of an inquiry made by ...
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Timmons v. State, CA CR 02-657.
...ever file a posttrial motion challenging the classification of the felony in the judgment and disposition order. See J.C.S. v. State, 336 Ark. 364, 985 S.W.2d 312 (1999) (finding challenge to sentence barred when no notice of appeal or post-trial motion was made raising or preserving challe......
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McGhee v. State
...even constitutional ones, will not be considered because the trial court never had an opportunity to rule on them. J.C.S. v. State, 336 Ark. 364, 985 S.W.2d 312 (1999); Ussery v. State, supra. As such, appellant's argument is not preserved for our Alternatively, appellant argues that in the......
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Foley v. State, CACR02-1346.
...even constitutional ones, will not be considered because the trial court never had an opportunity to rule on them. J.C.S. v. State, 336 Ark. 364, 985 S.W.2d 312; Ussery v. State, [308 Ark. 67, 822 S.W.2d 848]. As such, appellant's argument is not preserved for our review. Alternatively, app......