State v. Knight

• Decision Date: 19 January 1976
• Docket Number: No. CR75--125,CR75--125
• Citation: 533 S.W.2d 488,259 Ark. 107
• Parties: STATE of Arkansas, Appellant, v. William KNIGHT, Appellee.
• Court: Arkansas Supreme Court

Page 488

533 S.W.2d 488

259 Ark. 107

STATE of Arkansas, Appellant, v. William KNIGHT, Appellee.

No. CR75--125.

Supreme Court of Arkansas.

Jan. 19, 1976.

Rehearing Denied March 29, 1976.

Jim Guy Tucker, Atty. Gen., by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellant.

Rubens & Rubens by Kent J. Rubens, West Memphis, for appellee.

JONES, Justice.

This is an appeal by the State of Arkansas from an order in a circuit court judgment granting the appellee-defendant's motion for discharge and dismissal of felony charges against him, because he had been denied a speedy trial.

On July 5, 1974, the appellee William Knight was charged on information filed by the prosecuting attorney in Crittenden County with the crime of first degree murder. He was arraigned on September 4, 1974, at which time he entered a plea of not guilty. Knight was unable to make bond so he remained in jail while awaiting trial. For various reasons not germane to the issues here, and really not fully disclosed by the record, Knight's case did not come to trial until February 24, 1975.

When appellee Knight's case came to trial on February 24, 1975, he filed a motion to dismiss in compliance with Ark.Stat.Ann. § 43--1708 (Repl.1964) because he was not given a speedy trial. Knight's case proceeded to jury trial on February 24, 1975. He was found guilty of murder in the second degree, and the jury imposed a sentence of 15 years in the Arkansas Department of Correction. On February 26, 1975, Knight filed a motion to postpone sentencing under the jury verdict until his motion to dismiss for want of a speedy trial could be heard and passed on by the trial court. Sentencing was postponed pursuant to Knight's motion and on May 15, 1975, a hearing was held on the motion to dismiss. On June 9, 1975, the trial court entered the judgment order appealed from as follows:

'Now on this the 24th day of February, 1975, this cause comes on to be heard. The Plaintiff appears by David Burnett, Prosecuting Attorney within and for the Second Judicial District of Arkansas, and Joe Rogers, Deputy Prosecuting Attorney for Crittenden County, Arkansas. The Defendant appears in person and with his attorney, Kent J. Rubens. The Defendant, having previously waived a formal arraignment and enter(ed) his plea of NOT GUILTY to the charge of murder in the first degree, announced ready for trial subject to the Court's ruling on Defendant's Motion for Dismissal. A jury of twelve (12) from the regular panel of petit jurors was impaneled and sworn to try the cause, and, having heard the evidence, the instructions of the Court, and argument of counsel, retired to consider its verdict of guilty of the lesser included crime of murder in the second degree and fixed his punishment for a term of fifteen (15) years in the State Penitentiary.

The Court informed the Defendant of the nature of the charge, his plea thereon and the verdict of the jury thereon, and asked if Defendant had any legal cause to show why judgment should not be pronounced against him, and the Defendant again argued that the Court consider his Motion for Dismissal for Failure to Grant Him a Speedy Trial.

Sentencing was postponed, and a hearing was held to determine the merit of Defendant's Motion, said hearing was held on May 15, 1975, with the Defendant appearing in person and by and through his attorney, Kent J. Rubens, and the State appearing by and through its attorney, David Burnett, Prosecuting Attorney within and for the Second Judicial District of Arkansas, together with Jor Rogers and James C. Hale, Jr., Deputy Prosecuting Attorneys for Crittenden County, Arkansas. The Court heard the evidence of the parties together with their witnesses, the arguments of counsel and the Brief submitted by Defendant.

On Monday, June 9, 1975, the Court by letter advised Defendant's attorney that the Motion should be granted and that the charge against the Defendant should be dismissed with prejudice and the verdict of the jury set aside.

IT IS, THEREFORE, BY THE COURT CONSIDERED AND ORDERED that the verdict of the jury should be and the same is now hereby set aside; that the Defendant, William Lee Knight, be discharged from the custody of the Sheriff of Crittenden County, Arkansas, and the charge of murder in the first degree filed against him dismissed with prejudice and costs shall be taxed to the State.

ENTERED this 30th day of June, 1975.'

On its appeal to this court the state contends that the ruling of the trial court was clearly erroneous both legally and factually. The appellee contends, however, that the appeal should be dismissed for failure of the state to comply with statutory requirements pertaining to appeals by the state. We shall first consider the appellee's contentions.

Ark.Stat.Ann. § 43--2720 (Repl.1964) provides for appeal by the state and appears as follows:

'Where an appeal on behalf of the State is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered, whereupon the clerk shall immediately make a transcript of the record and transmit the same to the attorney general, or deliver the transcript to the prosecuting attorney, to be transmitted by him. If the attorney general, on inspecting the record, is satisfied that error has been committed to the prejudice of the State, and upon which it is important to the correct and uniform administration of the criminal law that the Supreme Court should decide, he may by lodging the transcript in the clerk's office of the Supreme Court, within sixty (60) days after the decision, take the appeal.'

The appellee argues that strict compliance with the terms of the statute is jurisdictional and that under its terms the attorney general 'must endorse on the transcript a direction to the clerk of the Supreme Court to file same,' citing State v. Cox, 29 Ark. 115. We find no language in the statute requiring the attorney general to endorse on the transcript any direction to the clerk of this court. Neither do we find such requirement in State v. Cox, supra. The Cox case presented a unique situation. In that case this court found from the exceptions taken by the prosecuting attorney that the trial court had excluded all evidence that seemed to have been offered by the state and, consequently, the defendant was found not guilty. This court in Cox then said:

'How the case got into this court does not appear. There is no record entry in the transcript before us, showing that an appeal was prayed by the state, in the circuit court, not does the file mark of the clerk of this court show who filed the transcript in his office. It appears simply to have been filed and the cause docketed and submitted.'

This court in Cox then recited the statutory requirement, that where an appeal on behalf of the state is desired, the prosecuting attorney shall pray the appeal during the term at which the decision is rendered; whereupon, the clerk shall make a transcript of the record and transmit it to the attorney general or give it to the prosecuting attorney to be by him transmitted to the attorney general. This court then recited that portion of the statute providing that if the attorney general upon inspection of the record is satisfied that error had been committed to the prejudice of the state, etc., 'he may, by lodging the transcript in the clerk's office of the Supreme Court within sixty days (60) days after the decision, take the appeal.'

The prosecuting attorney in the case at bar did file notice of appeal on July 7, 1975, and designated for inclusion in the record on appeal 'the complete record and all proceedings and evidence in the action.' The transcript was filed with the clerk of this court on August 4, 1975. There is nothing in the record to indicate that the transcript was filed by anyone other than the attorney general and we deem it unnecessary for the record to show whether it was submitted to the attorney general by the clerk of the trial court or by the prosecuting attorney.

This court takes judicial notice of motions filed with its clerk and this court's actions pertaining thereto. Both the appellee-defendant and the state requested and were granted extensions of time for filing briefs. On September 10, 1975, the state, 'by and through Jim Guy Tucker, Attorney General,' filed a motion for extension of time to file appellant's brief and the motion was granted by this court. On November 26, 1975, the attorney general filed an additional motion for extension of time in which to file appellant's reply brief and we granted that motion also. Furthermore, the docket sheet in the clerk's office of this court recites 'Attorney General--State of Arkansas--Filed August 4, 1975.' We conclude that the state of Arkansas sufficiently complied with the statutory requirements in perfecting the state's appeal to this court, and that this court has jurisdiction in connection therewith.

The appellee also contends and argues that the state failed to transmit the complete record on appeal in compliance with the prosecuting attorney's notice of appeal where he stated: 'The plaintiff designated for inclusion in the record on the Appeal, the complete record and all proceedings and evidence in this action.' Apparently the appellee is contending that the state should have filed the entire record of the trial which resulted in the appellee's conviction of murder in the second degree. We do not agree with the appellee in this contention. There is no appeal before this court pertaining to the appellee's conviction. The matter before us on this appeal pertains to the appellee's discharge and not to his conviction. We conclude that the record before us is entirely adequate and sufficient for our determination of the question here involved.

The appellee also argues that 'the record discloses that no exceptions were made to the ruling of the court nor was a motion for new trial made.' He argues that both of these procedural steps...