State v. Wilcox

STATE of Arkansas v. John WILCOX

95-1166                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered September 9, 1996


1.   Prohibition, writ of -- when properly granted. -- A writ of
     prohibition is an extraordinary writ and is only granted when
     the lower court is wholly without jurisdiction, there are no
     disputed facts, there is no adequate remedy otherwise, and the
     writ is clearly warranted; prohibition involves jurisdictional
     issues, and for the writ to issue, it must appear that the
     trial court is about to act in a matter beyond its
     jurisdiction and that the petitioner has no other remedy to
     prevent the threatened usurpation of power; prohibition is
     designed to prevent a court from exercising jurisdiction not
     possessed by it or power not otherwise authorized by law when
     there is no other adequate remedy by appeal or otherwise.  

2.   Prohibition, writ of -- writ improperly granted -- municipal
     court had jurisdiction to try appellant. -- Where appellant
     conceded that, if and when the municipal court imposed the
     interlock device as part of his sentence, he could appeal his
     conviction judgment to the circuit court where he could obtain
     a de novo trial and contest, constitutionally and otherwise,
     the imposition of such a device, and where, in addition,
     appellant admitted that the municipal court had jurisdiction
     to try his DWI offense, from which appeal could be had to
     circuit court, the circuit court erred in issuing a writ
     prohibiting the inferior court from utilizing Ark. Code Ann.
      5-65-118 in sentencing appellant; a writ of prohibition
     should not be granted even if part of the order is beyond the
     jurisdiction of the judge, since those questions can be
     properly raised on appeal. 


     Appeal from Benton Circuit Court; Tom J. Keith, Judge;
reversed and remanded.
     Winston Bryant, Att'y Gen., by:  Kelly K. Hill, Asst. Att'y
Gen., for appellant.
     Doug Norwood, for appellee.

     Tom Glaze, Justice.
     Appellant John Wilcox pled guilty to driving while
intoxicated, first offense, before a special or temporary judge in
municipal court.  The judge delayed sentencing until the return of
the regular sitting judge, Doug Schrantz.  The special judge
indicated Judge Schrantz would impose the use of an interlock
ignition device in Wilcox's car.  Such a device connects a motor
vehicle ignition to a breath-alcohol analyzer and prevents the
ignition from starting if a driver's blood-alcohol level exceeds
the calibration setting on the device.
     Before the date of his sentencing, Wilcox petitioned the
Benton County Circuit Court for a writ of certiorari or prohibition
to prohibit Judge Schrantz from imposing an interlock device as a
part of Wilcox's sentence.  The circuit court found that the
ignition interlock device law, Ark. Code Ann.  5-65-118(a)(1)
(1993), violated the Equal Protection Clause and issued a writ
prohibiting the municipal court from utilizing the statute.  The
state brings this appeal, seeking reversal.
     We do not reach the issue concerning the constitutionality of
 5-65-118 because the circuit court had no authority to issue a
writ of prohibition preventing that statute's enforcement.  First,
as this court has said repeatedly, a writ of prohibition is an
extraordinary writ and is only granted when the lower court is
wholly without jurisdiction, there are no disputed facts, there is
no adequate remedy otherwise, and the writ is clearly warranted. 
State v. Pulaski County Circuit-Chancery Ct., 316 Ark. 473, 872 S.W.2d 854 (1994); see also 73 C.J.S. Prohibition 521 (prohibition
is not available to prevent proceedings where a statute or
ordinance is not clearly unconstitutional and where the question of
the constitutionality of a statute does not go to the fundamental
jurisdiction of the court).  Prohibition involves jurisdictional
issues, and for the writ to issue, it must appear that the trial
court is about to act in a matter beyond its jurisdiction and the
petitioner has no other remedy to prevent the threatened usurpation
of power.  Rodriguez v. Adkisson, Judge, 254 Ark. 128, 491 S.W.2d 814 (1973).  Stated differently, prohibition is designed to prevent
a court from exercising jurisdiction not possessed by it or power
not otherwise authorized by law when there is no other adequate
remedy by appeal or otherwise.  Municipal Ct. of Huntsville v.
Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987).
     Wilcox concedes that, when (or if) the Rogers Municipal
Court imposed the interlock device as part of his sentence, Wilcox
could appeal his conviction judgment to the Benton County Circuit
Court where he could obtain a de novo trial and contest,
constitutionally, and otherwise, the imposition of such a device. 
In addition, Wilcox admits, as he must, that the Rogers Municipal
Court had jurisdiction to try his DWI offense, and this court has
held that a writ of prohibition should not be granted even if part
of the order is beyond the jurisdiction of the judge, since those
questions can be properly raised on appeal.  Miller v. Lofton, 279
Ark. 461, 652 S.W.2d 627 (1983).  Because the Rogers Municipal
Court had jurisdiction to try Wilcox's DWI prosecution, and Wilcox
can appeal that court's decision to circuit court, the Benton
County Circuit Court erred in issuing a writ prohibiting that
inferior court from utilizing  5-65-118 in sentencing Wilcox.   
     In conclusion, we mention Wilcox's argument that this court
lacks jurisdiction to hear this appeal.  Wilcox is wrong.  The
court has jurisdiction under Ark. R. App. P. 2(a)(2); see also
Municipal Court of Huntsville, 294 Ark. 37, 740 S.W.2d 614.
     We reverse the Benton County Circuit Court's decision issuing
a writ of prohibition and remand with directions to vacate its
writ.