Sherman v. State

Patrick L. SHERMAN v. STATE of Arkansas

CR 96-183                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Criminal law -- order denying motion to dismiss on former
     jeopardy considerations is appealable. -- An order denying a
     motion to dismiss based on former jeopardy considerations is
     an appealable decision. 

2.   Appeal & error -- when trial court loses jurisdiction --
     filing of notice of appeal insufficient. -- It is the filing
     of the transcript in an appellate court or the placing of the
     sentence into execution that deprives a trial court of
     jurisdiction, not the filing of the notice of appeal; after
     the notice of appeal has been filed and the transcript has
     been lodged with the appellate court, the trial court loses
     jurisdiction of the case except for matters such as appointing
     defense counsel or correcting its judgment to speak the truth.

3.   Appeal & error -- when appeal divests trial court of
     jurisdiction -- independent matters remain within trial
     court's jurisdiction. -- The rule that an appeal divests the
     trial court of jurisdiction applies only to matters
     necessarily or directly involved in the matter under review; 
     it does not stay further proceedings with respect to rights
     not passed on or affected by the judgment or decree from which
     the appeal is taken; matters that are independent, or
     collateral or supplemental, are left within the jurisdiction
     and control of the trial court, notwithstanding the appeal.

4.   Appeal & error -- filing of interlocutory appeal on denial of
     motion to dismiss based on double jeopardy -- protection of
     defendant's double-jeopardy rights requires court to refrain
     from determining guilt. -- When a defendant has filed an
     interlocutory appeal of a denial of a motion to dismiss based
     on double jeopardy, although the trial court has jurisdiction
     to determine the defendant's guilt, to do so erroneously risks
     violation of the defendant's double-jeopardy rights; it is a
     matter of protection of the defendant's double-jeopardy rights
     and not a matter of jurisdiction that requires a trial court
     to refrain from proceeding to determine guilt. 

6.   Appeal & error -- interlocutory appeal -- Double Jeopardy
     Clause protects against more than just being convicted twice
     for same crime. -- The Double Jeopardy Clause protects an
     individual against being twice convicted for the same crime,
     however, the Double Jeopardy Clause is also a guarantee
     against being twice put to trial for the same offense;
     consequently, if a criminal defendant is to avoid exposure to
     double jeopardy and thereby enjoy the full protection of the
     Clause, his double-jeopardy challenge to the indictment must
     be reviewable before that subsequent exposure occurs.

7.   Appeal & error -- trial court erred in proceeding with trial 
     -- interlocutory appeal should have been dealt with first. -- 
     The trial court erred in proceeding with appellant's trial in
     circuit court after appellant had filed notice of appeal from
     the denial of his motion to dismiss based on double jeopardy. 
     
8.    Trial -- appellant forced to stand trial over valid jeopardy-
     based objection -- prejudice cannot be shown when the trial
     was for a charge that was not jeopardy-barred. -- When an
     accused is forced to stand trial over a valid jeopardy-based
     objection, it is not error for the state appellate court to
     reduce the conviction to a non-barred lesser-included offense
     because the defendant has not demonstrated prejudice;
     prejudice cannot be shown when the forced trial was for a
     charge that was not jeopardy-barred.

9.   Criminal law -- Blockburger test -- determination as to
     whether one or two offenses occurred. -- Where the same act or
     transaction constitutes a violation of two distinct statutory
     provisions, the test to be applied to determine whether there
     are two offenses or only one is whether each provision
     requires proof of a fact which the other does not; a single
     act may be an offense against two statutes, and if each
     statute requires proof of an additional fact that the other
     does not, an acquittal or conviction under either statute does
     not exempt the defendant from prosecution and punishment under
     the other.

10.  Criminal law -- potentially overlapping offenses -- first-
     degree battery and aggravated assault are not lesser-included
     offenses of reckless driving for double-jeopardy purposes. --
     The offense of reckless driving requires proof of the actual
     driving of a vehicle; the offenses of assault and battery do
     not; the offense of first-degree battery requires proof of
     actual physical injury to another person; the offense of
     reckless driving does not; the offense of aggravated assault
     requires proof of creating danger of serious physical injury
     to another; the offense of reckless driving does not; reckless
     driving requires proof of elements that first-degree battery
     and aggravated assault do not, and first-degree battery and
     aggravated assault require proof of elements that reckless
     driving does not; therefore, first-degree battery and
     aggravated assault are not lesser-included offenses of
     reckless driving, and they are not considered the same
     offenses for double-jeopardy purposes.

11.  Criminal law -- whether punishments are multiple under Double
     Jeopardy Clause -- legislative intent determinative. -- 
     Because the substantive power to prescribe crimes and
     determine punishments is vested with the legislature, the
     question under the Double Jeopardy Clause whether punishments
     are "multiple" is essentially one of legislative intent.

12.  Criminal law -- legislative intent clear -- fleeing clearly a
     separate offense -- felony prosecutions were not barred. --  
     Given the clear legislative intent expressed in Ark. Code Ann.
      5-54-125(b) that fleeing is to be considered a separate
     offense, the Double Jeopardy Clause did not bar appellant's
     trial or punishment; therefore, under the Blockburger rule and
     the Double Jeopardy Clauses, the felony prosecutions and
     punishments for first-degree battery, aggravated and first-
     degree assault, and fleeing were not barred.

13.  Appeal & error -- appellant's jeopardy plea with respect to
     felonies meritless -- although trial court erred in proceeding
     with trial without allowance for interlocutory appeal,
     reversal not required. -- With respect to all felonies,
     appellant's jeopardy plea had no merit, and, consequently,
     appellant could not demonstrate any prejudice from having
     endured the trial in circuit court; thus, although the trial
     court erred in proceeding with appellant's trial without
     allowing for an interlocutory appeal, reversal was not
     required because appellant had not demonstrated that the trial
     was for a jeopardy-barred offense.

14.  Criminal law -- collateral estoppel not a bar to criminal
     prosecution -- second required element not present. -- Two
     factors must be present for collateral estoppel to bar a
     criminal prosection: (1) both adjudicatory entities must be
     arms of the same sovereign and (2) a factual issue essential
     to the first verdict must be an essential element of the
     second charge; here, the doctrine of collateral estoppel was
     not applicable because the second element was not satisfied; 
     a favorable finding of fact is essential to a collateral-
     estoppel defense.  

15.  Criminal law -- res judicata defense not complete --
     prosecution and sentences for felonies not precluded by
     doctrine. -- One of the five elements of a res judicata
     defense is that both proceedings involve the same claim or
     cause of action that was litigated or could have been
     litigated but was not; here, the felony charges could not have
     been tried in municipal court because municipal court lacked
     jurisdiction of felony charges, thus, appellant's prosecutions
     and sentences for the felonies were not precluded by the
     doctrine of res judicata.


     Appeal from Clark Circuit Court, Ninth Judicial District;
W.H."Dub" Arnold, Judge; affirmed.
     Benny M. Tucker, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen., Sr. Appellate Advocate for appellee.

     Donald L. Corbin, Justice.
     Appellant, Patrick L. Sherman, appeals the judgment of the
Clark County Circuit Court convicting him of fleeing, first-degree
assault, and two counts of first-degree battery, fining him $10.00,
and sentencing him to a cumulative sentence of forty years in
prison.  Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-
2(a)(2).  Appellant's four points for reversal of the judgment,
which was entered pursuant to a jury verdict, relate to his claims
of double jeopardy, res judicata, and collateral estoppel.  We
affirm.  
     All four felony charges at issue in this appeal were the
result of a single incident occurring on April 4, 1995.  While
driving a stolen truck, Appellant tried to outrun the police,
ultimately driving through a police road block and causing property
damage to two vehicles and personal injuries to the driver of one
of the vehicles and a pedestrian.  As a result of this single
incident, Appellant was not only charged by information with the
four felonies at issue here, but he was first charged by citation
with four misdemeanors to which he pleaded guilty in municipal
court and was sentenced:  driving while intoxicated, failure to
yield to an emergency vehicle, driving without a license, and
reckless driving.
     Appellant filed a pretrial motion to dismiss the felony
prosecutions on the basis that they were barred by the Double
Jeopardy Clauses of the Arkansas and United States Constitutions
and by the principles of res judicata and collateral estoppel.  The
trial court denied the motion to dismiss, and Appellant filed a
notice of appeal from that denial.  However, while recognizing that
an order denying such a motion to dismiss is a final order for
purposes of filing an interlocutory appeal, the trial court
proceeded with Appellant's jury trial.  Appellant then filed this
appeal from the judgment of conviction, asserting four points for
reversal.
                 I.  ERROR TO PROCEED WITH TRIAL
     Appellant's first point for reversal is that the trial court
erred in requiring him to be tried after he filed a notice of
appeal from the denial of his motion to dismiss based on grounds of
double jeopardy, res judicata, and collateral estoppel.  At a
hearing on the day before trial, Appellant objected to his trial on
the basis that he should be allowed to pursue an interlocutory
appeal and that his filing a notice of appeal deprived the trial
court of subject-matter jurisdiction.  The trial court recognized
that the denial of a motion to dismiss based on double jeopardy was
an appealable order, but stated that Appellant's motion for double
jeopardy had no merit and that the court did indeed have
jurisdiction to hold the trial because the transcript had not been
lodged in an appellate court.  The trial court also reasoned that,
because the case had been set for trial the next day and Appellant
had been a very unruly inmate causing damage to the jail facility,
and because the jeopardy motion lacked merit, Appellant would not
be prejudiced by going to trial.
     In support of his first argument for reversal, Appellant
challenges the aforementioned proceedings on three bases.  First,
he claims that because the denial of a double jeopardy-based motion
is amenable to interlocutory appeal, the trial court was without
subject-matter jurisdiction to proceed with his trial.  Second, he
claims that the trial court's reliance on an alleged ex parte
communication with the county sheriff about Appellant's bad
behavior in jail formed an improper basis for the trial court's
decision.  Third, Appellant claims that the denial of a double
jeopardy-based motion to dismiss is not subject to harmless-error
analysis, as the trial court stated, because of the very nature of
the right -- protection from subjection to a second, barred trial. 
We need not address the second contention because Appellant did not
raise it below.  Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917
(1995).  We consider the third contention together with Appellant's
second point for reversal as they are interrelated.
     The law is well established that an order denying a motion to
dismiss based on former jeopardy considerations is an appealable
decision.  Abney v. United States, 431 U.S. 651 (1977); Smith v.
State, 307 Ark. 542, 821 S.W.2d 774 (1992) (citing Fariss v. State,
303 Ark. 541, 798 S.W.2d 103 (1990) and Jones v. State, 230 Ark.
18, 320 S.W.2d 645 (1959)).  Appellant argues that because the
motion to dismiss was amenable to interlocutory appeal, the trial
court was without subject-matter jurisdiction to try him.  The
State cites United States v. Lanci, 669 F.2d 391 (6th Cir.), cert.
denied, 457 U.S. 1134 (1982), and responds that a defendant's right
to pursue an interlocutory appeal of the denial of a pretrial
double jeopardy-based motion to dismiss is conditioned upon a
showing that there is a "colorable  foundation" for the former
jeopardy issue.  
     It is the filing of the transcript in an appellate court or
the placing of the sentence into execution that deprives a trial
court of jurisdiction, not the filing of the notice of appeal. 
Glick v. State, 283 Ark. 412, 677 S.W.2d 844 (1984).  After the
notice of appeal has been filed and the transcript has been lodged
with the appellate court, the trial court loses jurisdiction of the
case except for matters such as appointing defense counsel or
correcting its judgment to speak the truth.  Id.; Fletcher v.
State, 198 Ark. 376, 128 S.W.2d 997 (1939).  In this case, the
trial court stated that because the transcript had not been lodged
in this court, the trial court had jurisdiction to proceed with
Appellant's trial.  While the trial court accurately stated a rule
of law, we are not convinced that rule is applicable to a situation
like the current one where the propriety of an interlocutory appeal
is at issue.      
     The foregoing rules cited from Glick and Fletcher only address
the transfer of jurisdiction from a trial court to an appellate
court in the context of a case that has been tried to completion or
otherwise ended in a final judgment.  The foregoing rules do not
address the transfer of jurisdiction from a trial court to an
appellate court in the context of an interlocutory appeal, i.e.,
when there has been no final judgment on the case, but only a
judgment as to a separable part of a case.  Relating to the latter
type of appeals, this court has said:
          The rule that an appeal divests the trial court of
     jurisdiction applies only to matters necessarily or
     directly involved in the matter under review.  It does
     not stay further proceedings with respect to rights not
     passed on or affected by the judgment or decree from
     which the appeal is taken.  Matters which are independent
     of, or collateral or supplemental, are left within the
     jurisdiction and control of the trial court,
     notwithstanding the appeal.

Bleidt v. 555, Inc., 253 Ark. 348, 350-51, 485 S.W.2d 721, 723
(1972) (per curiam) (citations omitted).  In stating the foregoing
rule of law, this court relied upon 4A C.J.S. 399, 413, Appeal and
Error,  608 and 618, which in their current forms are found at
4 C.J.S. Appeal and Error  396 and 405 (1993).  As applied to
this case, we find the following particularly relevant:
          Jurisdiction as to the entire cause is not
     transferred in an appellate proceeding for the review of
     an incidental or interlocutory matter, but the trial
     court or parties may still proceed in matters not
     involved in the appeal and which are entirely collateral
     to the part of the case taken up.
          The trial court, even when it has the jurisdiction
     to proceed in the main case, after an appeal or writ of
     error from an incidental or interlocutory matter may in
     its discretion decide to await the determination of the
     appellate proceeding.  Furthermore, the lower court
     cannot proceed in such manner as to lead to a decision,
     pending the appeal, of the very question involved on the
     appeal, or of a question which cannot properly arise or
     be determined until after the determination of the
     appeal; nor may it so dispose of the cause as to
     interfere with the jurisdiction or orders of the
     appellate court; and, the proceedings had in the lower
     court pending appeal are subject to be set aside if they
     are inconsistent with the order or decision of the
     appellate court.
4 C.J.S. Appeal and Error  397 (1993) (footnotes omitted).
     When the rule from the Bleidt case is strictly applied in a
criminal case in the particular context of double jeopardy, it
could be said that the question of the defendant's guilt or
innocence on the charges is independent of the question of whether
the defendant's trial on the charges is jeopardy-barred.  Under
such a strict construction, a trial court would retain jurisdiction
of the question of a defendant's guilt while the double jeopardy
question is addressed on interlocutory appeal.  While such a strict
construction would result in placing form over substance as far as
a defendant's double-jeopardy rights are concerned, it would not be
doing so as far as the trial court's jurisdiction is concerned. 
Thus, we conclude that when a defendant has filed an interlocutory
appeal of a denial of a motion to dismiss based on double jeopardy,
although the trial court has jurisdiction to determine the
defendant's guilt, to do so erroneously risks violation of the
defendant's double-jeopardy rights.  In other words, it is a matter
of protection of the defendant's double-jeopardy rights and not a
matter of jurisdiction that requires a trial court to refrain from
proceeding to determine guilt. 
     We are sympathetic to the State's argument that a defendant's
right to pursue an interlocutory appeal of the denial of a pretrial
jeopardy-based motion to dismiss is conditioned upon a showing that
there is a "colorable  foundation" for the former jeopardy issue
and find some support for it in the above-cited cases from this
court, see, e.g., Jones, 230 Ark. at 24-25, 320 S.W.2d  at 650.  We
cannot agree that a defendant's right to appeal is so conditioned
because of the following language authored by Mr. Chief Justice
Burger:
     [T]he rights conferred in a criminal accused by the
     Double Jeopardy Clause would be significantly undermined
     if appellate review of double jeopardy claims were
     postponed until after conviction and sentence.  To be
     sure, the Double Jeopardy Clause protects an individual
     against being twice convicted for the same crime, and
     that aspect of the right can be fully vindicated on an
     appeal following final judgment, as the Government
     suggests.  However, this Court has long recognized that
     the Double Jeopardy Clause protects an individual against
     more than being subjected to double punishments.  It is
     a guarantee against being twice put to trial for the same
     offense. . . .  Because of this focus on the "risk" of
     conviction, the guarantee against double jeopardy assures
     an individual that, among other things, he will not be
     forced, with certain exceptions, to endure the personal
     strain, public embarrassment, and expense of a criminal
     trial more than once for the same offense.  It thus
     protects interests wholly unrelated to the propriety of
     any subsequent conviction. . . .  Obviously, these
     aspects of the guarantee's protections would be lost if
     the accused were forced to "run the gauntlet" a second
     time before an appeal could be taken; even if the accused
     is acquitted, or if convicted, has his conviction
     ultimately reversed on double jeopardy grounds, he has
     still been forced to endure a trial that the Double
     Jeopardy Clause was designed to prohibit.  Consequently,
     if a criminal defendant is to avoid exposure to double
     jeopardy and thereby enjoy the full protection of the
     Clause, his double jeopardy challenge to the indictment
     must be reviewable before that subsequent exposure
     occurs.

Abney, 431 U.S.  at 660-62 (citations and footnotes omitted).

     While we are sympathetic to the State's view, we do not adopt
it for the reasons expressed by the Supreme Court in footnote 8 of
the Abney decision:
          Admittedly, our holding may encourage some
     defendants to engage in dilatory appeals as the Solicitor
     General fears.  However, we believe that such problems of
     delay can be obviated by rules or policies giving such
     appeals expedited treatment.  It is well within the
     supervisory powers of the courts of appeals to establish
     summary procedures and calendars to weed out frivolous
     claims of former jeopardy.
Abney, 431 U.S.  at 662.
     Based on the above-quoted principles, we conclude that the
trial court erred in proceeding with Appellant's trial in circuit
court.  The question of the effect of this error, however, remains
for our consideration.  
     The United States Supreme Court has indicated that when an
accused was forced to stand trial over a valid jeopardy-based
objection, it was not error for the state appellate court to reduce
the conviction to a non-barred lesser-included offense because the
defendant had not demonstrated prejudice.  See Morris v. Mathews,
475 U.S. 237 (1986).  Prejudice cannot be shown when the forced
trial was for a charge that was not jeopardy-barred.  Id.  In
Morris, the accused had pleaded guilty to aggravated robbery, was
sentenced, and then tried and convicted for aggravated murder based
on the robbery; on appeal, the aggravated murder conviction was
reduced to murder, a lesser-included offense of aggravated murder. 
The Supreme Court concluded that because it was clear that the jury
found all the elements of the lesser offense, it would be pointless
to order a new trial to cure the double jeopardy violation.  The
Supreme Court thus affirmed the trial and sentence on the lesser-
included offense of murder.  Thus, in the present case, deciding
whether Appellant was prejudiced such that reversal of the trial
court's error is required, we first determine whether Appellant's
trial in circuit court is jeopardy-barred; and that is precisely
the issue Appellant raises as his second point for reversal.  
     II.  FELONY PROSECUTIONS ARE BARRED BY DOUBLE JEOPARDY
     Appellant contends that his pleas of guilt and resulting
sentences entered in municipal court to the misdemeanor charges of
driving while intoxicated, reckless driving, failure to yield to an
emergency vehicle, and driving without a license bar the subsequent
prosecution in circuit court for the felony charges of fleeing,
first-degree assault, and first-degree battery.  Appellant argues
that under the test enunciated in Blockburger v. United States, 284 U.S. 299 (1932), reckless driving contains the same elements as do
aggravated assault and first-degree battery.  Likewise, he claims
that failure to yield encompasses the same elements as fleeing.
     The State intimates that we need not conduct a Blockburger
analysis because of the "jurisdictional exception" to the double
jeopardy bar.  The "jurisdictional exception" was stated in Diaz v.
United States, 223 U.S. 442, 449 (1912), as follows:
     [T]he justice of the peace, although possessed of
     jurisdiction to try the accused for assault and battery,
     was without jurisdiction to try him for homicide; and, of
     course, the jeopardy incident to the trial before the
     justice did not extend to an offense beyond his
     jurisdiction.  All that could be claimed for that
     jeopardy was that it protected the accused from being
     again prosecuted for the assault and battery, and
     therefore required that the latter be not treated as
     included, as a lesser offense, in the charge of
     homicide . . . .  It follows that the plea of former
     jeopardy disclosed no obstacle to the prosecution for
     homicide.

     In support of its claim that the "jurisdictional exception"
applies to eliminate any bar by Appellant's former jeopardy plea,
the State cites Ark. Code Ann.  5-1-113(1)(a) (Repl. 1993), which
states that a former prosecution is an affirmative defense to a
subsequent prosecution for a different offense when the former
prosecution results in a conviction and the subsequent prosecution
is for any offense of which the defendant could have been convicted
in the first prosecution.  The State maintains that Appellant could
not have been convicted of the felonies in municipal court because
municipal courts lack jurisdiction of felonies; and therefore, the
felony prosecutions in circuit court were not barred by the
municipal court convictions.
     Because Appellant was charged in both municipal court and
circuit court and pleaded guilty and was sentenced concerning the
municipal-court charges, we agree that the facts of this case
appear within the "jurisdictional exception" to the bar of double
jeopardy.  However, the "jurisdictional exception" does not apply
when lesser-included offenses are involved.  Diaz, 223 U.S. 442. 
Therefore, we must conduct a Blockburger analysis to determine if
these offenses are the same or included offenses such that they are
barred by the Double Jeopardy Clauses.
     The Blockburger test is as follows:
     [W]here the same act or transaction constitutes a
     violation of two distinct statutory provisions, the test
     to be applied to determine whether there are two offenses
     or only one, is whether each provision requires proof of
     a fact which the other does not.  Gavieres v. United
     States, 220 U.S. 338, 342, and authorities cited.  In
     that case this court quoted from and adopted the language
     of the Supreme Court of Massachusetts in Morey v.
     Commonwealth, 108 Mass. 433:  "A single act may be an
     offense against two statutes, and if each statute
     requires proof of an additional fact which the other does
     not, an acquittal or conviction under either statute does
     not exempt the defendant from prosecution and punishment
     under the other."

Blockburger, 284 U.S.  at 304.
     Following are the elements of the crimes at issue here as
provided in the Arkansas Code of 1987 Annotated (Repl. 1993, Repl.
1994, and Supp. 1995):
27-50-308. Reckless driving.

          (a) Any person who drives any vehicle in such a
     manner as to indicate a wanton disregard for the safety
     of persons or property is guilty of reckless driving.

          (b)(1)(A) If physical injury to a person results,
     every person convicted of reckless driving shall be
     punished upon a first conviction by imprisonment for a
     period of not less than thirty (30) days nor more than
     ninety (90) days or by a fine of not less than one
     hundred dollars ($100) nor more than one thousand dollars
     ($1,000), or by both such fine and imprisonment.

5-13-201. Battery in the first degree.
          (a) A person commits battery in the first degree if:

          (1) With the purpose of causing serious physical
     injury to another person, he causes serious physical
     injury to any person by means of a deadly weapon; or

          (2) With the purpose of seriously and permanently
     disfiguring another person or of destroying, amputating,
     or permanently disabling a member or organ of his body,
     he causes such an injury to any person; or

          (3) He causes serious physical injury to another
     person under circumstances manifesting extreme
     indifference to the value of human life[.]  

5-13-204. Aggravated assault.
          (a) A person commits aggravated assault if, under
     circumstances manifesting extreme indifference to the
     value of human life, he purposely engages in conduct that
     creates a substantial danger of death or serious physical
     injury to another person.

27-51-901. Operation of vehicles and streetcars on approach of
           authorized emergency vehicles.
          (a) Upon the immediate approach of an authorized
     emergency vehicle, when the driver is giving audible
     signal by siren, exhaust whistle, or bell, the driver of
     every other vehicle shall yield the right-of-way and
     shall immediately drive to a position parallel to, and as
     close as possible to the right-hand edge or curb of the
     highway clear of any intersection and shall stop and
     remain in such position until the authorized emergency
     vehicle has passed, except when otherwise directed by a
     police officer.

5-54-125. Fleeing.
          (a) If a person knows that his immediate arrest or
     detention is being attempted by a duly authorized law
     enforcement officer, it is the lawful duty of such person
     to refrain from fleeing, either on foot or by means of
     any vehicle or conveyance.

          (b) Fleeing is a separate offense and shall not be
     considered a lesser included offense or component offense
     with relation to other offenses which may occur
     simultaneously with the fleeing.

     The offense of reckless driving requires proof of the actual
driving of a vehicle; the offenses of assault and battery do not.
The offense of first-degree battery requires proof of actual
physical injury to another person; the offense of reckless driving
does not.  The offense of aggravated assault requires proof of
creating danger of serious physical injury to another; the offense
of reckless driving does not.  Reckless driving requires proof of
elements that first-degree battery and aggravated assault do not,
and first-degree battery and aggravated assault require proof of
elements that reckless driving does not.  Therefore, we conclude
that first-degree battery and aggravated assault are not lesser-
included offenses of reckless driving and that they are not
considered the same offenses for double jeopardy purposes.
     The fleeing statute specifically provides that it is a
separate offense and is not to be considered a component offense
with other offenses occurring simultaneously.  Section 5-54-125(b). 
The United States Supreme Court has stated that legislatures are
free under the Double Jeopardy Clause to define crimes and fix
punishments, but that courts may not impose more than one
punishment for the same offense.  Brown v. Ohio, 432 U.S. 161
(1977).  That Court has further stated that, "Because the
substantive power to prescribe crimes and determine punishments is
vested with the legislature, . . ., the question under the Double
Jeopardy Clause whether punishments are 'multiple' is essentially
one of legislative intent[.]"  Ohio v. Johnson, 467 U.S. 493, 499
(1984).  Given the clear legislative intent expressed in section 5-
54-125(b) that fleeing is to be considered a separate offense, we
have no doubt in concluding that the Double Jeopardy Clause does
not bar Appellant's trial or punishment therefor.  Therefore, we
conclude that under the Blockburger rule and the Double Jeopardy
Clauses the felony prosecutions and punishments for first-degree
battery, aggravated and first-degree assault, and fleeing were not
barred.
     In summary, we conclude that, with respect to all felonies,
Appellant's jeopardy plea had no merit and that, consequently,
Appellant cannot demonstrate any prejudice from having endured the
trial in circuit court.  Thus, although the trial court erred in
proceeding with Appellant's trial without allowing for an
interlocutory appeal, reversal is not required because Appellant
has not demonstrated that the trial was for a jeopardy-barred
offense.  See Morris, 457 U.S. 237.
     Finally, we note the State's argument that we should overrule
Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993).  This argument
is without merit because it overlooks the fact that Craig involved
a subsequent conviction for a lesser-included offense and multiple
punishment was therefore barred on that basis.  Craig is not, as
the State fears, precedent for defendants to intentionally plead
guilty in municipal court with the purpose of creating a double
jeopardy bar to a subsequent felony prosecution.
             III.  ARKANSAS FORMER JEOPARDY STATUTES
     In addition to the Double Jeopardy Clauses of both the
Arkansas and United States Constitutions, Appellant relied on
sections 5-1-110, 5-1-112, and 5-1-113 of the Arkansas Code of 1987
Annotated in his motion to dismiss below.  On appeal, he relies on
the same statutes as requiring reversal.  The cited statutes
encompass the principles of double jeopardy that we have previously
discussed in this opinion.  We need not consider this argument any
further as we concluded that Appellant's trial and punishments are
not precluded by such principles.  It matters not whether the
principles are founded in constitutional, statutory, or judge-made
law.
            IV.  COLLATERAL ESTOPPEL AND RES JUDICATA
     "Two factors must be present for collateral estoppel to bar a
criminal prosection:  (1) both adjudicatory entities must be arms
of the same sovereign and (2) a factual issue essential to the
first verdict must be an essential element of the second charge." 
Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990) (citing United
States v. Kills Plenty, 466 F.2d 240 (8th Cir. 1972), cert. denied,
410 U.S. 916 (1973)).  As the State argues, the doctrine of
collateral estoppel is not applicable to the facts of this case
because the second element above has not been satisfied.  Such a
favorable finding of fact is essential to a collateral-estoppel
defense.  Dowling v. United States, 493 U.S. 342, 347-49 (1990);
Fariss, 303 Ark. 541, 798 S.W.2d 103.
     One of the five elements of a res judicata defense is that
both proceedings involve the same claim or cause of action that was
litigated or could have been litigated but was not.  Id.  Here, the
felony charges could not have been tried in municipal court because
municipal court lacks jurisdiction of felony charges.  Thus,
Appellant's prosecutions and sentences for the felonies are not
precluded by the doctrine of res judicata.
     The judgment of conviction is affirmed.
     GLAZE, J., dissents.
            TOM GLAZE, Associate Justice, dissenting
     I dissent.  The trial court erred in forcing appellant to
trial.  Everyone agrees that appellant had a right to appeal when
the trial court denied appellant's motion to dismiss on the grounds
of double jeopardy.  Smith v. State, 307 Ark. 542, 821 S.W.2d 774
(1992).  By sanctioning what the trial court did here, we are
holding that even though a losing party is by law entitled to the
right to file an interlocutory appeal, a trial court can nullify
that appeal right by forcing the party to trial before he or she is
able to perfect the appeal.  
     On Friday, July 21, 1995, the trial court denied appellant's
motion, and appellant immediately informed the trial court that he
would appeal.  In an attempt to expedite matters, appellant filed
his notice the same day.  On the following Monday, July 24, 1995,
the trial court related to appellant's counsel that the court had
been informed that appellant had been a problem in jail, and
directed that appellant's case would proceed to trial the next day
on Tuesday, July 25, 1995.  
     Appellant's counsel was placed in the position of trying to
perfect an appeal during the balance of the day, Monday, or prepare
for the next day's trial.  Defense counsel contacted the Supreme
Court Clerk's Office and discovered that he could get no temporary
stay because the Supreme Court was in recess.  
     Obviously, defense counsel was left with a Hobson's choice. 
If he tried to perfect an appeal in the remaining part of the day,
July 24, he would have had great difficulty in obtaining even a
partial transcript in the few hours he was allowed, and being in
Clarksville, he had no assurance he could timely file it.  Also, if
he opted to chance an appeal, he would have little or no time to
prepare for trial the next day.  
     Our 1995 Arkansas Rules of Criminal Procedure, Rule 36.9,
allowed appellant thirty days from the trial court's order to
perfect an appeal, and he should have been allowed that time.  In
my opinion, the trial court abused its discretion in forcing
appellant to stand trial over defense counsel's legitimate
objections.  The trial court should have entered its order and
allowed appellant thirty days to perfect his appeal.  While I might
well agree with the majority opinion in rejecting appellant's
double jeopardy argument, this case should be reversed for a new
trial for the reasons discussed above.