Carroll v. State

Terry Lynn CARROLL v. STATE of Arkansas

CR 96-770                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 5, 1996
            Dissenting Opinion delivered July 5, 1996


     Petition for Writ of Prohibition; Pulaski Circuit Court,
Fourth Division; John Langston, Judge; Stay granted.
     William R. Simpson, Jr., Public Defender, by:  Bret Qualls,
for petitioner.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate, for respondent.

     
     Glaze and Roaf, JJ., would deny.
     Dudley, J., not participating.

     Tom Glaze, Justice, dissenting.*ADVREP*SC1*






TERRY LYNN CARROLL,
                    PETITIONER,

V.

STATE OF ARKANSAS,
                    RESPONDENT.



CR96-770

Opinion Delivered:  7-5-96

PETITION FOR WRIT OF
PROHIBITION




DISSENTING OPINION




                  TOM GLAZE, Associate Justice

     This court has authority to stay proceedings pending an
appeal, Bowen v. State, 323 Ark. 233, 913 S.W.2d 304 (1996); Clark
v. State, 308 Ark. 453, 824 S.W.2d 345 (1992), and certainly it has
done so when a meritorious reason has been shown.  In the present
case, petitioner Terry Carroll requests this court issue a writ of
prohibition, to order the trial court to desist from proceeding
with his trial scheduled to begin on July 8, 1996.  Carroll's
request is assertedly made so that this court might consider his
interlocutory appeal from the trial judge's denial of his motion to
transfer to juvenile court.  From my review of the record,
Carroll's writ (or stay) request has no merit and should be denied.
     On July 5, 1995, Carroll was charged by information with three
counts of capital murder and one count of attempted capital murder. 
Carroll, along with three others, allegedly participated in the
execution-style murder of three children and attempted murder of
another on June 4, 1995.  At the time of the murder, Carroll was 16
years old.  
     To support his petition for issuance of a writ of prohibition,
Carroll cites Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877
(1995), where this court held appeals from motions to transfer to
juvenile court are to be interlocutory, and any appeal from such an
order after a judgment of conviction in circuit court is untimely. 
This court, however, has held many times that prohibition is an
extraordinary writ and is never issued to prohibit a trial court
from erroneously exercising its jurisdiction, only where it is
proposing to act in excess of its jurisdiction.  Fletcher v. State,
318 Ark. 298, 884 S.W.2d 623 (1994).  A circuit court and a
juvenile court have concurrent jurisdiction and a prosecuting
attorney may charge a juvenile in either court when a case involves
a juvenile at least sixteen years old when he engages in conduct
that, if committed by an adult, would be any felony.  Ark. Code
Ann.  9-27-318(b)(1) (Supp. 1995).  Here, the circuit court
indisputably has jurisdiction to try Carroll on the four felony
charges, so a writ of prohibition clearly does not lie against it.
     Although Carroll was charged and counsel appointed almost a
year ago on July 17, 1995, and he had filed other motions, he has
waited until now to file his motion for transfer to juvenile court. 
After a hearing was held on the motion to transfer, the circuit
court denied the motion, finding the charged offenses were serious
and violent in nature.  The order denying the transfer was entered
on July 2, 1996.  
     Carroll's petition for writ of prohibition to this court fails
to show that his interlocutory appeal has any merit.  Carroll
merely contends because he was aged sixteen at the time the
offenses were committed, his case belongs in juvenile court. 
Carroll's bare contention is insufficient under the statute to
support a transfer, and reflects little, if any, possibility of
success on appeal.  
     The burden is on Carroll, as petitioner, to present a
sufficient basis to support his petition and to show that his
request to transfer to juvenile court has merit.  Butler v. State,
324 Ark. 476, ___ S.W.2d ___ (1996).  Carroll does not have an
automatic right to a transfer to juvenile court, and this court
should not stay proceedings without a show of merit.  
     For the foregoing reasons, I would treat Carroll's peitition
as one for stay of proceedings, and deny it.