Gardner v. Rogers

Scotty Ray GARDNER v. Honorable Russell
ROGERS

CR 96-777                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 15, 1996


1.   Prohibition -- petitioner must produce record showing writ is
     clearly warranted. -- A petitioner seeking a writ of
     prohibition in this Court must produce a record sufficient to
     show the writ is clearly warranted. 

2.   Prohibition -- extraordinary writ -- when issued. --
     Prohibition is an extraordinary writ and is never issued to
     prohibit a trial court from erroneously exercising its
     jurisdiction but is issued only when it is proposing to act in
     excess of its jurisdiction; a writ of prohibition is an
     extraordinary remedy that issues only 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.

3.   Prohibition -- petition denied. -- Where petitioner did not
     produce a record showing that the trial court lacked
     jurisdiction over him or the crime with which he was charged,
     the supreme court denied the petition for writ of prohibition.


     Petition for Writ of Prohibition; denied.
     Dennis R. Molock, for petitioner.
     No response.

     Per Curiam.July 15, 1996  *ADVREP*SC16*


                                   CR96-777
SCOTTY RAY GARDNER                 

          Petitioner               Petition for Writ of Prohibition

     v.

HONORABLE RUSSELL ROGERS, 
Circuit Judge

          Respondent               Petition Denied






                           Per Curiam.



     Scotty Ray Gardner seeks a writ of prohibition ordering the
Circuit Court of Arkansas County to discharge him from custody and
to refrain from conducting any proceedings concerning his case. 
Mr. Gardner's failure to demonstrate the Circuit Court's lack of
jurisdiction precludes the issuance of the writ.
     On October 23, 1991, Mr. Gardner pleaded guilty to two counts
of criminal attempt to commit first-degree murder.  He was
sentenced to thirty years imprisonment on each charge.  The
sentences were ordered to run consecutively, and seven years of
each sentence were suspended.
     Mr. Gardner sought a writ of habeas corpus in the United
States District Court for the Eastern District of Arkansas.  On
January 9, 1996, an order was entered by that Court which stated in
part:

     Accordingly, it is hereby ordered that petitioner be
     brought before the State trial court within thirty (30)
     days of this order for arraignment and at that time be
     given an opportunity to enter his pleas to the charges
     against him.  If he pleads not guilty to either or both
     of said Counts, the State will commence the trial on said
     charge or charges within one-hundred twenty (120) days of
     the entry of said not-guilty plea or pleas.  * * *  if
     the State fails . . . to commence any trial of Petitioner
     occasioned by his not guilty plea or pleas within one-
     hundred twenty (120) days after the entry of said plea or
     pleas, the writ of habeas corpus shall issue and said
     petitioner will thereupon be forthwith released from
     custody and discharged from the pending charges.

     According to Mr. Gardner's petition he pleaded not guilty to
both counts on January 22, 1996.  His petition mentions that he
requested a continuance but that the time should not have been
charged against him as it resulted from his having been transferred
to a prison facility in Texas, thus hampering his ability to
prepare for trial.  He does not state the duration of the
continuance, nor does he indicate that he has sought relief from
the Circuit Court in which he is to be tried.  He claims solely
that, due to the expiration of more than 120 days from the date of
the guilty pleas, this Court should prohibit the Circuit Court from
trying him.
     A petitioner seeking a writ of prohibition in this Court must
produce a record sufficient to show the writ is clearly warranted. 
Davis v. State, 319 Ark. 171, 889 S.W.2d 769 (1994);  Beasley v.
Graves, 315 Ark. 663, 869 S.W.2d 20 (1994).  Our law is
well-established that prohibition is an extraordinary writ and is
never issued to prohibit a trial court from erroneously exercising
its jurisdiction, but is issued only when it is proposing to act in
excess of its jurisdiction.  Davis v. State, supra.  See, e.g.,
Rhodes v. Capeheart, 313 Ark. 16, 852 S.W.2d 118 (1993).  A writ of
prohibition is an extraordinary remedy which issues only 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 Court,
316 Ark. 473, 872 S.W.2d 854 (1994).
     Mr. Gardner has not produced a record showing that the Trial
Court lacks jurisdiction over him, or the crime with which he is
charged. 
     Petition denied.