State v. Pulaski County Circuit Court

STATE of Arkansas v. PULASKI COUNTY CIRCUIT
COURT

96-1286                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 16, 1996


1.   Prohibition -- when appropriate -- directed to court itself. -
     - A writ of prohibition is only appropriate when the acting
     court is wholly without jurisdiction; moreover, a writ of
     prohibition must be clearly warranted; a writ of prohibition
     is not directed to the jurisdiction of an individual judge but
     to the court itself.

2.   Prohibition -- essential prerequisite lacking because circuit
     court did not wholly lack subject-matter jurisdiction. --
     Where the Arkansas Constitution provides that circuit courts
     have superintending control over municipal courts and also
     have exclusive control over felony charges, and where the
     rules of criminal procedure contemplate that a second
     "judicial officer" may reduce the bail bond set by an original
     judicial officer, the supreme court, concluding that a
     superintending circuit judge qualifies as a judicial officer
     for purposes of the rule governing bail, the supreme court
     held that the essential prerequisite for a writ of prohibition
     was lacking because the circuit court did not wholly lack
     subject-matter jurisdiction.

3.   Certiorari -- appropriate vehicle for relief in bail
     proceedings. -- Writs of certiorari have been labeled the
     appropriate vehicle for relief in bail proceedings; certiorari
     lies to correct proceedings erroneous on the face of the
     record where there is no other adequate remedy, and it is
     available to the appellate court in its exercise of
     superintending control over a lower court that is proceeding
     illegally where no other mode of review has been provided; a
     demonstration of plain, manifest, clear, and gross abuse of
     discretion is essential before the supreme court will grant a
     petition for writ of certiorari; based on these standards, the
     supreme court concluded that a writ of certiorari appeared to
     be the correct vehicle for the relief sought by the State.

4.   Certiorari -- writ not warranted under facts of case --
     circuit judge's reduction of bail amount not erroneous on
     face. -- Under the facts of the case, the supreme court
     concluded that a writ of certiorari was not warranted;
     probable cause for detention had been found by the municipal
     court, and the case had been bound over to circuit court; the
     appropriate amount of bail following a probable-cause hearing
     for a felony arrest falls within the superintending power of
     the circuit courts over municipal courts; if a municipal court
     has the authority to set bail for arrested felons but no power
     to proceed with the resolution of felony matters, certainly
     the superintending circuit courts would have comparable
     authority; the supreme court held that, as a result, the
     action of the circuit judge in reducing the bail amount was
     not erroneous on its face.

5.   Jurisdiction -- municipal court was limited to determining
     whether reasonable cause existed that juvenile committed
     offense and whether he should be detained. -- The supreme
     court concluded that the municipal court had no authority to
     proceed with trying a felony offense and was limited to a
     determination of whether reasonable cause existed that the
     juvenile committed the offense and whether he should be
     detained pending further proceedings.

6.   Criminal procedure -- two-month delay in filing charges was
     unacceptable. -- The decision to file a felony information
     generally rests entirely in the prosecutor's discretion; in
     this case, however, the deputy prosecutor offered no
     explanation at a hearing concerning why no filing decision had
     been made by his office two months after the juvenile's arrest
     and detention; if no valid reason existed for the delay, a
     petition for writ of habeas corpus by the juvenile to the
     circuit court might well have been appropriate; but, the
     supreme court concluded that, regardless of the existence of
     an additional remedy, a two-month delay in filing charges
     without good reason was unacceptable; the State's petition for
     a writ of prohibition or, alternatively, for a writ of
     certiorari, was denied.


     Peitition for a Writ of Prohibition or, In the Alternative,
for a Writ of Certiorari; denied.
     Winston Bryant, Att'y Gen., by:  Kelly K. Hill, Deputy Att'y
Gen., for petitioner.
     James, Yeatman & Carter, PLC, by: Paul J. James and Steve W.
Haralson, for respondent.

     Robert L. Brown, Justice.
     On October 25, 1996, the State of Arkansas filed its petition
for a writ of prohibition or, alternatively, for a writ of
certiorari and prayed that this court vacate the Pulaski County
Circuit Court's order reducing bail for David Bernard Batts from
$25,000 to $7,500.  We deny the petition.
     On July 16, 1996, Officer Charles Jones of the Sherwood Police
Department arrested David Bernard Batts, age 16, for the unlawful
discharge of a firearm, which is a Class B felony.  See Ark. Code.
Ann.  5-74-107(b)(1), (2) (Repl. 1993).  Officer Jones issued a
complaint against Batts for the offense by completing an Arkansas
Uniform Traffic Ticket and Complaint form in which he stated that
he had reasonable grounds to believe the offense was committed. 
Batts was booked in the Sherwood City Jail, and bail was fixed at
$50,000.
     The following day, Batts appeared with a deputy public
defender in Sherwood Municipal Court, presumably for a reasonable-
cause hearing on whether Batts committed the offense.  See Ark. R.
Crim. P. 4.1(e).  The municipal court apparently found reasonable
cause and, therefore, cause to detain Batts under Ark. R. Crim. P.
8.3(c), though the record before this court is void of any
information concerning a hearing.  The municipal court records do
reflect that bail was set at $25,000, and the matter was bound over
to Pulaski County Circuit Court.  Batts was transferred to the
Pulaski County Jail.
     On September 17, 1996, Pulaski County Circuit Judge Marion
Humphrey held a hearing on the Batts matter, after first notifying
the prosecuting attorney.  The catalyst for the hearing was a
meeting that Judge Humphrey had with Batts's parents the previous
day where they complained to the judge that Batts should be in
school and not in jail.  Batts had been in jail continuously since
his arrest on July 16, 1996.  The prosecuting attorney had filed no
formal felony charges against him.
     At the September 17, 1996 hearing, the deputy prosecutor
explained that the State's case against Batts would be that he shot
at another car while traveling on the Jacksonville/Sherwood highway
and struck a postal truck that was following behind the car he was
trying to hit.  A dispute at a roller skating rink led to the
shooting.  The prosecutor further informed the court that his
office had received the Batts file on August 19, 1996, but had not
yet made a decision to file formal charges against him as an adult. 
The deputy prosecutor stated:
     It hasn't gone to the first attorney for a file decision. 
     And we try and get all of our file decisions out within
     a month and we're right on the outside of that right now. 
     As the Court knows, some things [are] slowed down because
     of the turnover in the circuit clerk's office.
The deputy prosecutor further advised the circuit court that Batts
had been given his Miranda rights at the Sherwood Police Department
and had admitted to the shooting.  He further told the court that
the prosecutor would be charging Batts as an adult and that "there
will probably be two counts of unlawful discharge and probably one
terroristic act for hitting the mail truck that was occupied by a
postal worker."
     The deputy prosecutor then objected to the bond hearing
because charges had not been filed in circuit court.  The court
admonished the prosecutor to "move these [cases] along", and the
court reduced the bail to $7,500.  It is that action by the circuit
court that the State seeks to vacate with its petition.

                         I. Prohibition
     We first consider whether a petition for a writ of prohibition
is the appropriate remedy.  We conclude that it is not.  A writ of
prohibition is only appropriate when the acting court is wholly
without jurisdiction.  Steve Standridge Ins., Inc. v. Langston, 321
Ark. 331, 900 S.W.2d 955 (1995); Hall v. Pulaski County Circuit
Court, 320 Ark. 593, 898 S.W.2d 46 (1995).  Moreover, a writ of
prohibition must be clearly warranted.  Archer v. Benton County
Circuit Court, 316 Ark. 477, 872 S.W.2d 397 (1994); Leach v. State,
303 Ark. 309, 796 S.W.2d 837 (1990).  A writ of prohibition is not
directed to the jurisdiction of an individual judge but to the
court itself.  Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992).
     The Arkansas Constitution provides that the circuit courts of
this state have superintending control over municipal courts.  Ark.
Const. art. 7,  14.  See also Ark. Code Ann.  16-13-203 and 16-
13-204 (Repl. 1994).  The circuit courts also have exclusive
jurisdiction over felony charges.  Ark. Const. art. 7,  11; State
v. Pulaski County Circuit-Chancery Court, 316 Ark. 473, 872 S.W.2d 854 (1994).  Our criminal rules further contemplate that a second
"judicial officer" may reduce the bail bond set by an original
judicial officer.  Ark. R. Crim. P. 9.2(e)(i).  Surely, a
superintending circuit judge qualifies as a judicial officer for
purposes of the rule governing bail.  We hold, accordingly, that
the essential prerequisite for a writ of prohibition is lacking in
this matter because the Pulaski County Circuit Court does not
wholly lack subject-matter jurisdiction.

                         II. Certiorari
     We turn then to the alternative remedy requested, which is
certiorari.  Writs of certiorari have been labeled the appropriate
vehicle for relief in bail proceedings.  See, e.g., Casement v.
State, 318 Ark. 225, 884 S.W.2d 593 (1994); Foreman v. State, 317
Ark. 146, 875 S.W.2d 853 (1994).  We have stated:
     Certiorari lies to correct proceedings erroneous on the
     face of the record where there is no other adequate
     remedy, and it is available to the appellate court in its
     exercise of superintending control over a lower court
     that is proceeding illegally where no other mode of
     review has been provided.  Lupo v. Lineberger, 313 Ark.
     315, 855 S.W.2d 293 (1993).  A demonstration of plain,
     manifest, clear, and gross abuse of discretion is
     essential before this court will grant a petition for
     writ of certiorari.  Shorey v. Thompson, 295 Ark. 664,
     750 S.W.2d 955 (1988).
Foreman, 317 Ark. at 148, 875 S.W.2d  at 854.  Based on these
standards, a writ of certiorari appears to be the correct vehicle
for the relief sought by the State.
     On the merits of whether a writ of certiorari is warranted
under these facts, we conclude that it is not for the same reasons
that have already been discussed.  Probable cause for detention had
been found by the Sherwood Municipal Court, and the case had been
bound over to circuit court.  We have held that before the
prosecutor files a proper charging instrument, the circuit court
has no authority to proceed with the matter.  Whitehead v. State,
316 Ark. 563, 873 S.W.2d 800 (1994).  Here, however, the
appropriate amount of bail following a probable-cause hearing for
a felony arrest falls within the superintending power of the
circuit courts over municipal courts.  If a municipal court has the
authority to set bail for arrested felons but no power to proceed
with the resolution of felony matters, certainly the superintending
circuit courts would have comparable authority.  We hold, as a
result, that the action of the circuit judge in reducing the bail
amount was not erroneous on its face.
     The State bases its contention that the circuit court was
without authority to effect a change in the bail amount on two
cases -- Gober v. Daniels, 295 Ark. 199, 748 S.W.2d 29 (1988), and
Municipal Court of Huntsville v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987).  In Casoli, the municipal court appealed after the
circuit court entered a mandamus order directing the refund of an
appearance bond to the defendant in a misdemeanor case.  A $5,000
appearance bond was set in a third-offense DWI case (a misdemeanor,
at that time), after Casoli had previously forfeited a $1,500 bond. 
The circuit court found that the $5,000 bond was excessive and
ordered the municipal court to return the bond and "reinstate" the
DWI charge.  After reviewing the circuit court's superintending
authority over municipal courts, we held that the amount of bail
rests in the sound discretion of the municipal court and that the
circuit court was without authority to issue a writ of mandamus or
prohibition to control that discretion.
     Likewise in Gober, the defendant was convicted of DWI (a
misdemeanor), and he appealed to the circuit court.  The circuit
court then entered an order of mandamus to the municipal court to
reduce the bond by the amount of the fines which were suspended. 
Citing Casoli, we held again that the circuit court erred in
issuing a writ of mandamus to control the discretion of the
municipal court.
     The Gober and Casoli cases, however, are distinguishable from
the case at hand.  First, in both earlier cases the circuit court
directed the municipal court to reduce the bail.  Here, the circuit
court reduced the bail amount itself.  Secondly, the municipal
court in Gober and Casoli had jurisdiction to bring about
convictions of the misdemeanor offenses, which would result in an
appeal to the circuit court in the normal course of events.  In the
instant case, the municipal court had no authority to proceed with
trying a felony offense and was limited to a determination of
whether reasonable cause existed that Batts committed the offense
and whether he should be detained pending further proceedings.  See
Ark. Const. art. 7,  43; Ark. R. Crim. P. 4.1(e), 8.3(c).  See
also Ark. Code Ann.  16-85-207 (1987); Bailey v. State, 284 Ark.
379, 682 S.W.2d 734 (1985).
     What is most troublesome about Batts's situation is the
judicial limbo into which he was cast for an extended period of
time without a formal felony charge being lodged against him.  The
decision to file a felony information generally rests entirely in
the prosecutor's discretion.  See Miller v. State, 269 Ark. 341,
605 S.W.2d 430 (1980), quoting Borkenkircher v. Hayes, 434 U.S. 357
(1978).  However, the deputy prosecutor offered no explanation at
the September 17, 1996 hearing as to why no filing decision had
been made by his office two months after Batts's arrest and
detention.  If no valid reason existed for the delay, a petition
for writ of habeas corpus by Batts to the circuit court might well
have been appropriate.  See Ark. Code Ann.  16-112-122 (1987). 
But regardless of the existence of an additional remedy, a two-
month delay in filing charges without good reason is unacceptable.
     Petition denied.
     Glaze, J., dissents.

=================================================================

                  Tom Glaze, Justice, dissents.

     To my knowledge, this court has never upheld a trial court's
taking jurisdiction to hear a case when no complaint has been filed
or action has been commenced.  Here, the State repeatedly objected
to the trial court taking jurisdiction in this case without
something first having been filed with the court.  To permit the
trial court's actions and decision in this matter eviscerates the
basic requirements of this court's rules of procedure.  Therefore,
I dissent.
     This rather unusual case began on July 16, 1996, when David
Batts allegedly was in a vehicle when he shot at another car and
struck a postal truck.  On the same date, Batts was arrested, and
the municipal court held a reasonable cause hearing.  Upon
conclusion of the hearing, the municipal judge found Batts's charge
involved a felony offense, the discharge of a firearm from a
vehicle, Ark. Code Ann.  5-74-107 (Repl. 1993).  The judge then
set Batts's bond at $50,000, but reduced it to $25,000 the next
day.  No further action is shown to have been requested or taken in
the municipal court.  
     The next set of events began on September 16, 1996, when
Batts's parents showed up at the Pulaski County Courthouse, and for
some reason, went directly to Pulaski County Circuit Court Judge
Marion H. Humphrey.  In other words, the parents filed no pleadings
in the clerk's office, and they had no attorney.  Nonetheless, the
parents asked Judge Humphrey to help them find some information
concerning David Batts's case, and complained that their son should
be in school, but instead was in jail.  The judge accommodated the
parents by contacting the prosecuting attorney's office and
requesting that office to appear in his court the next day.  The
judge also asked the prosecutor's office to check to see if Batts
had a prior record.
     On September 17, 1996, Judge Humphrey, over the State's
objection, conducted a hearing concerning Batts's case even though
no complaint had been filed, and no attorney was present to
represent Batts or the parents.  The deputy prosecutor informed the
court he could not, as yet, determine if Batts had a prior record,
but related that Batts had given a statement, admitting to the July
16 shooting incident for which he was arrested.  The deputy
prosecutor further related his office had received the municipal
court file on Batts on August 19, 1996, and while the State tries
to file such felony cases in circuit court within thirty days of a
municipal court proceeding, it had not yet done so in the Batts
case.  The deputy prosecutor said that his office would likely
charge Batts with the unlawful discharge of a firearm count and
terroristic threatening, since Batts's shot had hit the postal
truck when the truck was occupied.
     Judge Humphrey voiced concern over Batts being only sixteen
years old, his not being in school, and his sitting in jail when no
charge had been filed in circuit court.  The judge asked Batts's
parents if they were able to make any kind of bond, and
subsequently he reduced Batts's bond to $7,500.  At the hearing's
end, the deputy prosecutor again objected because nothing had ever
been filed giving the trial court jurisdiction.
     The State filed its original action in our court requesting
this court issue a writ of prohibition vacating the circuit judge's
order reducing Batts's bond.  The State continues its objection,
stating Batts had never filed a complaint with the circuit court,
therefore, the circuit judge had no authority or jurisdiction to
enter an order.
     Rule 3 of this court's rules of civil procedure establishes
that a civil action is commenced by filing a complaint with the
clerk of the proper court who shall note thereon the date and
precise time of filing.  Upon filing of the complaint, the clerk
issues a summons forthwith, and that summons is to be served on the
defendant under ARCP Rule 4.  If the defendant is not served within
120 days, the action is dismissed unless the time for service is
extended.  These fundamental rules were altogether ignored in this
case.  In sum, no action has ever been filed or summons served so
as to commence this matter in Judge Humphrey's court.  Therefore,
the judge had no authority to conduct proceedings concerning
Batts's case.  
     This court's willingness to permit the circuit court to ignore
this court's rules of civil procedure has caused it to err in its
review of the trial court's order.  For example, the majority court
states the Pulaski County Circuit Court does not wholly lack
subject-matter jurisdiction, yet this court's settled rule is that
jurisdiction is tested on the pleadings.  Springdale Sch. Dist. v.
Jameson, Judge, 274 Ark. 78, 621 S.W.2d 860 (1981).  In the present
case, no pleadings have been filed, so how is this appellate court
to decide the jurisdictional issue?  If pleadings had been filed
below, the parties would have been required to establish the
factual and legal issues regarding the municipal court's and
circuit court's jurisdiction involving reasonable cause hearings
and bond issues.  The State was never afforded the opportunity to
respond to Batts's complaint because none was filed.   
     Batts's counsel on appeal complains the State should have
filed its charges earlier in circuit court, but if that was Batts's
complaint, he could have properly filed a complaint asking a writ
of mandamus issue against the State compelling it to exercise its
discretion and file charges against Batts.  Or, Batts could have
requested the municipal court to give him another reduction, since
that court willingly gave him one earlier.  
     At the very least, Batts was required to file his complaint,
setting out his allegations and grievances, in the circuit court
clerk's office, so the clerk could properly assign the case to a
circuit judge for immediate action, if requested.  By its decision
today, this court authorizes a procedure which allows parties to
circumvent our court rules and permits them to select a judge they
think might afford them relief.  Such forum shopping should be
forbidden by this court, not encouraged.