Shane Daugherty v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN E. JENNINGS, JUDGE

DIVISION IV

CACR 00-190

December 6, 2000

SHANE DAUGHERTY APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE MARION HUMPHREY

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

This is an interlocutory appeal from the denial of appellant's motion to dismiss in which he argued that his right against double jeopardy was being violated. We find no error in the trial court's decision and affirm.

On March 26, 1997, appellant was charged as an habitual offender with the offenses of possession of a controlled sub stance(methamphetamine) with intent to deliver, possession of drug paraphernalia, and possession of a controlled substance (mari juana). On the day appellant's case was scheduled for a bench trial, the trial court dismissed the charges for failure toprosecute when the State's witnesses failed to appear. The next day, the State refiled the information, and appellant later moved to dismiss, arguing that double jeopardy barred the State from trying him on the same charges. The trial court denied the motion, and this appeal followed.

In Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998), the appellant was charged with second-degree battery. The appellant's case was set for a bench trial, but the trial court dismissed the charge when the victim did not appear at trial. When the charge was refiled, the appellant argued that the previous dismissal amounted to an acquittal and that the Double Jeopardy Clause prohibited the State from pursuing the battery charge. On appeal, the supreme court held that jeopardy does not attach in a bench trial until the trial judge hears the first witness. Since the trial court had not begun to hear evidence when the case was dismissed, the supreme court ruled that the appellant's right against double jeopardy had not been offended.

This case is clearly controlled by the decision in Tipton v. State. When the charges were dismissed, the trial court had yet to hear any testimony. There was no error in the trial court's denial of the motion to dismiss.

Affirmed.

Bird and Stroud, JJ., agree.