Tipton v. State

Shelby John TIPTON v. STATE of Arkansas

CR 97-682                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 15, 1998


1.   Constitutional law -- Double Jeopardy Clause -- protection offered. -- The
     Double Jeopardy Clause of the Fifth Amendment to the United
     States Constitution protects a defendant from: (1) a second
     prosecution for the same offense after acquittal; (2) a second
     prosecution for the same offense after conviction; and (3)
     multiple punishments for the same offense.

2.   Constitutional law -- Double Jeopardy Clause -- underlying policies never
     implicated in proceeding in which appellant's charge was dismissed. -- The
     policies underlying double jeopardy protection, which apply to
     both jury and bench trials, were never implicated in the
     proceeding in which the charge against appellant was dismissed
     because the trial judge in that proceeding did not begin to
     hear evidence against appellant before dismissing his case; in
     other words, appellant was not put to trial before the trier
     of the facts in the proceeding.

3.   Criminal procedure -- State must abide by speedy-trial rules. -- The
     State must abide by speedy-trial rules in bringing cases to
     trial.

4.   Appeal & error -- issue not considered absent authority or convincing
     argument. -- Where appellant neither cited authority nor made a
     convincing argument, the supreme court would not consider the
     issue.


     Appeal from Pulaski Circuit Court, Fourth Division; John W.
Langston, Judge; affirmed.
     William R. Simpson, Jr., Public Defender, by:  Deborah R.
Sallings, Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for appellee.

     W.H. "Dub" Arnold, Chief Justice.
     This is an interlocutory appeal from an order of the Pulaski
County Circuit Court, Fourth Division, denying appellant Shelby
John Tiptonþs double-jeopardy-based motion to dismiss his second-
degree battery charge.  We affirm the trial courtþs order.
     On February 25, 1996, a fight broke out at B. J.þs Star
Studded Honky Tonk in Little Rock during which the appellant
allegedly struck Bradley Wood in the head with a beer bottle,
crushing bones in his face.  Thereafter, on May 20, 1996, the
appellant was charged by felony information with second-degree
battery.  His case, Case No. CR 96-1333, was assigned to the First
Division of Pulaski County Circuit Court.  The appellant waived a
jury trial, and a bench trial was set for January 6, 1997.  
     On the day of trial, while police officers who allegedly
witnessed the appellant strike the victim were present, the victim
did not appear.  The State asked the trial court for a continuance
to secure the presence of the victim for trial, but the trial court
denied the motion.  The appellant moved to dismiss the Stateþs
charge, which the trial court granted for the Stateþs þfailure to
prosecute.þ  No witnesses were sworn at this proceeding.
     On January 31, 1997, the State filed a second felony
information charging the appellant with second-degree battery.  The
case was assigned a new case number, Case No. CR 97-172, and was
assigned to the Fourth Division of Pulaski County Circuit Court. 
Subsequently, the appellant filed a motion to dismiss, claiming
that the Double Jeopardy Clause of the Fifth Amendment prohibited
the State from pursuing the battery charge.  At a hearing on the
motion, the appellant asserted that the prior dismissal of the
battery charge amounted to an acquittal because the State lacked
evidence sufficient to convict him on the date set for trial.  In
response, the State explained that the victim, a former resident of
Heber Springs, had moved to Oklahoma and had not been served with
his subpoena for the January 6, 1997, trial.  Because the trial
judge in that proceeding had dismissed the charge without hearing
any evidence, the State maintained that double jeopardy did not
prohibit refiling of the charge.  After considering both arguments,
the trial court denied the appellantþs motion to dismiss.  The
appellant now appeals that ruling.
     The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution protects a defendant from: (1) a second
prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction; and (3) multiple
punishments for the same offense.  State v. Johnson, 330 Ark. 636,
____ S.W.2d ____ (1997); Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1994).  The appellant claims that he is protected from a
second prosecution for second-degree battery because he was
acquitted of that charge when the trial court dismissed it at the
conclusion of the January 6, 1997, proceeding.  The State responds
that, because no witnesses were sworn at appellantþs January 6,
1997, bench trial, jeopardy did not þattachþ to that proceeding. 
Willis v. State, 299 Ark. 356, 772 S.W.2d 584 (1989), citing
Serfass v. United States, 420 U.S. 377 (1975) (þIn bench trials,
jeopardy attaches when the trial judge hears the first witness and
not until then.þ).  The State further relies on Ark. Code Ann.  5-
1-122 (Repl. 1994), which provides: 
          A former prosecution is an affirmative defense to a
     subsequent prosecution for the same offense under any of
     the following circumstances:
     . . .
          (3) The former prosecution was terminated without the
     express or implied consent of the defendant after the jury was
     sworn or, if trial was before the court, after the first
     witness was sworn, unless the termination was justified by
     overruling necessity.

     The appellant acknowledges the United States Supreme Courtþs
holding in Serfass v. United States, supra, but contends that,
because that case involved a jury trial, the Supreme Courtþs
language regarding time of attachment of double jeopardy in bench
trials is þmere dicta  and of no precedential weight.þ  We
disagree.  In Serfass, the Supreme Court explained the usefulness
of defining a point in criminal proceedings at which the policies
underlying double jeopardy are implicated, and explained those
policies as follows:
     The State with all its resources and power should not be
     allowed to make repeated attempts to convict an
     individual for an alleged offense, thereby subjecting him
     to embarrassment, expense and ordeal and compelling him
     to live in a continuing state of anxiety and insecurity,
     as well as enhancing the possibility that even though
     innocent he may be found guilty.

Serfass, 420 U.S.  at 388, citing Green v. United States, 355 U.S. 184, 187-188 (1957).  These policies, which apply to both jury and
bench trials, were never implicated in the January 6, 1997,
proceeding because the trial judge in that proceeding did not begin
to hear evidence against the appellant before dismissing his case. 
In other words, the appellant was not þput to trial before the
trier of the factsþ in the January 6, 1997, proceeding.  Id.
     The appellant further asserts that, if the Stateþs present
charge against him is not dismissed, it would take away the courtþs
power to control its docket.  According to the appellant, the State
would never be prepared for a bench trial on the date the trial
court orders it to be ready.  The appellantþs arguments disregard
the fact that the State must abide by speedy-trial rules in
bringing cases to trial.  See Ark. R. Crim. P. 28.3 (1997).
     Finally, the appellant asserts that the State should have
asked the trial judge in the January 6, 1997, proceeding to
reconsider his ruling rather than refile the second-degree battery
charge.  The appellant, however, neither cites authority nor makes
a convincing argument in support of his contention.  Thus, we will
not consider his argument.  See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997).
     Based on the foregoing, we affirm the trial courtþs decision.