Sherman v. State, CR
| Decision Date | 30 September 1996 |
| Docket Number | No. CR,CR |
| Parties | Patrick L. SHERMAN, Appellant, v. STATE of Arkansas, Appellee. 96-183. |
| Court | Arkansas Supreme Court |
Benny M. Tucker, Arkadelphia, for Appellant.
Clint Miller, Asst. Attorney General, Little Rock, for Appellee.
Appellant, Patrick L. Sherman, appeals the judgment of the Clark County Circuit Court convicting him of fleeing, first-degree assault, and two counts of first-degree battery, fining him $10.00, and sentencing him to a cumulative sentence of forty years in prison. Our jurisdiction is pursuant to Ark.Sup.Ct.R. 1-2(a)(2). Appellant's four points for reversal of the judgment, which was entered pursuant to a jury verdict, relate to his claims of double jeopardy, res judicata, and collateral estoppel. We affirm.
All four felony charges at issue in this appeal were the result of a single incident occurring on April 4, 1995. While driving a stolen truck, Appellant tried to outrun the police, ultimately driving through a police road block and causing property damage to two vehicles and personal injuries to the driver of one of the vehicles and a pedestrian. As a result of this single incident, Appellant was not only charged by information with the four felonies at issue here, but he was first charged by citation with four misdemeanors to which he pleaded guilty in municipal court and was sentenced: driving while intoxicated, failure to yield to an emergency vehicle, driving without a license, and reckless driving.
Appellant filed a pretrial motion to dismiss the felony prosecutions on the basis that they were barred by the Double Jeopardy Clauses of the Arkansas and United States Constitutions and by the principles of res judicata and collateral estoppel. The trial court denied the motion to dismiss, and Appellant filed a notice of appeal from that denial. However, while recognizing that an order denying such a motion to dismiss is a final order for purposes of filing an interlocutory appeal, the trial court proceeded with Appellant's jury trial. Appellant then filed this appeal from the judgment of conviction, asserting four points for reversal.
Appellant's first point for reversal is that the trial court erred in requiring him to be tried after he filed a notice of appeal from the denial of his motion to dismiss based on grounds of double jeopardy, res judicata, and collateral estoppel. At a hearing on the day before trial, Appellant objected to his trial on the basis that he should be allowed to pursue an interlocutory appeal and that his filing a notice of appeal deprived the trial court of subject-matter jurisdiction. The trial court recognized that the denial of a motion to dismiss based on double jeopardy was an appealable order, but stated that Appellant's motion for double jeopardy had no merit and that the court did indeed have jurisdiction to hold the trial because the transcript had not been lodged in an appellate court. The trial court also reasoned that, because the case had been set for trial the next day and Appellant had been a very unruly inmate causing damage to the jail facility, and because the jeopardy motion lacked merit, Appellant would not be prejudiced by going to trial.
In support of his first argument for reversal, Appellant challenges the aforementioned proceedings on three bases. First, he claims that because the denial of a double-jeopardy-based motion is amenable to interlocutory appeal, the trial court was without subject-matter jurisdiction to proceed with his trial. Second, he claims that the trial court's reliance on an alleged ex parte communication with the county sheriff about Appellant's bad behavior in jail formed an improper basis for the trial court's decision. Third, Appellant claims that the denial of a double-jeopardy-based motion to dismiss is not subject to harmless-error analysis, as the trial court stated, because of the very nature of the right--protection from subjection to a second, barred trial. We need not address the second contention because Appellant did not raise it below. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995). We consider the third contention together with Appellant's second point for reversal as they are interrelated.
The law is well established that an order denying a motion to dismiss based on former jeopardy considerations is an appealable decision. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992) (). Appellant argues that because the motion to dismiss was amenable to interlocutory appeal, the trial court was without subject-matter jurisdiction to try him. The State cites United States v. Lanci, 669 F.2d 391 (6th Cir.), cert. denied, 457 U.S. 1134, 102 S.Ct. 2960, 73 L.Ed.2d 1350 (1982), and responds that a defendant's right to pursue an interlocutory appeal of the denial of a pretrial double jeopardy-based motion to dismiss is conditioned upon a showing that there is a "colorable foundation" for the former jeopardy issue.
It is the filing of the transcript in an appellate court or the placing of the sentence into execution that deprives a trial court of jurisdiction, not the filing of the notice of appeal. Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984). After the notice of appeal has been filed and the transcript has been lodged with the appellate court, the trial court loses jurisdiction of the case except for matters such as appointing defense counsel or correcting its judgment to speak the truth. Id.; Fletcher v. State, 198 Ark 376, 128 S.W.2d 997 (1939). In this case, the trial court stated that because the transcript had not been lodged in this court, the trial court had jurisdiction to proceed with Appellant's trial. While the trial court accurately stated a rule of law, we are not convinced that rule is applicable to a situation like the current one where the propriety of an interlocutory appeal is at issue.
The foregoing rules cited from Glick and Fletcher only address the transfer of jurisdiction from a trial court to an appellate court in the context of a case that has been tried to completion or otherwise ended in a final judgment. The foregoing rules do not address the transfer of jurisdiction from a trial court to an appellate court in the context of an interlocutory appeal, i.e., when there has been no final judgment on the case, but only a judgment as to a separable part of a case. Relating to the latter type of appeals, this court has said:
The rule that an appeal divests the trial court of jurisdiction applies only to matters necessarily or directly involved in the matter under review. It does not stay further proceedings with respect to rights not passed on or affected by the judgment or decree from which the appeal is taken. Matters which are independent of, or collateral or supplemental, are left within the jurisdiction and control of the trial court, notwithstanding the appeal.
Bleidt v. 555, Inc., 253 Ark. 348, 350-51, 485 S.W.2d 721, 723 (1972) (per curiam) (citations omitted). In stating the foregoing rule of law, this court relied upon 4A C.J.S. 399, 413, Appeal and Error, §§ 608 and 618, which in their current forms are found at 4 C.J.S. Appeal and Error §§ 396 and 405 (1993). As applied to this case, we find the following particularly relevant:
Jurisdiction as to the entire cause is not transferred in an appellate proceeding for the review of an incidental or interlocutory matter, but the trial court or parties may still proceed in matters not involved in the appeal and which are entirely collateral to the part of the case taken up.
The trial court, even when it has the jurisdiction to proceed in the main case, after an appeal or writ of error from an incidental or interlocutory matter may in its discretion decide to await the determination of the appellate proceeding. Furthermore, the lower court cannot proceed in such manner as to lead to a decision, pending the appeal, of the very question involved on the appeal, or of a question which cannot properly arise or be determined until after the determination of the appeal; nor may it so dispose of the cause as to interfere with the jurisdiction or orders of the appellate court; and, the proceedings had in the lower court pending appeal are subject to be set aside if they are inconsistent with the order or decision of the appellate court.
4 C.J.S. Appeal and Error § 397 (1993) (footnotes omitted).
When the rule from the Bleidt case is strictly applied in a criminal case in the particular context of double jeopardy, it could be said that the question of the defendant's guilt or innocence on the charges is independent of the question of whether the defendant's trial on the charges is jeopardy-barred. Under such a strict construction, a trial court would retain jurisdiction of the question of a defendant's guilt while the double jeopardy question is addressed on interlocutory appeal. While such a strict construction would result in placing form over substance as far as a defendant's double-jeopardy rights are concerned, it would not be doing so as far as the trial court's jurisdiction is concerned. Thus, we conclude that when a defendant has filed an interlocutory appeal of a denial of a motion to dismiss based on double jeopardy, although the trial court has jurisdiction to determine the defendant's guilt, to do so erroneously risks violation of the defendant's double-jeopardy rights. In other words, it is a matter of protection of the defendant's double-jeopardy rights and not a matter of jurisdiction that requires a trial court to refrain from proceeding to determine guilt.
We are sympathetic to the State's argument that a defendant's right to pursue an interlocutory appeal of the denial of a pretrial jeopardy-based motion to...
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