Vernon K. Dillard v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNTATED FOR PUBLICATION

PER CURIAM

JULY 5, 2002

VERNON K. DILLARD

Appellant

v.

STATE OF ARKANSAS

Appellee

02-2

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CIV 2001-564-3, HONORABLE FRED D. DAVIS, III, JUDGE

AFFIRMED

In 1992, appellant was convicted of rape and sentenced, as a habitual offender, to thirty-five years' imprisonment in the Arkansas Department of Correction. Appellant brings this appeal from the Jefferson County Circuit Court's denial of his petition for declaratory judgment. We affirm.

A petition for declaratory judgment is civil in nature. Wiggins v. State, 299 Ark. 180, 181, 771 S.W.2d 759, 760 (1989). We have held that there are four requisite conditions beforedeclaratory relief may be granted: (1) there must exist a justiciable controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking relief must have a legal interest in the controversy; and (4) the issue involved in the controversy must be ripe for judicial determination. Arkansas Dep't of Human Servs. v. Ross-Lawhon, 290 Ark. 578, 579, 721 S.W.2d 658, 658 (1986). Our declaratory judgment act was not intended to allow any question to be presented by any person; the matters must first be justiciable. Andres v. First Ark. Development Finance Corp., 230 Ark. 594, 606, 324 S.W.2d 97, 104 (1959). The declared legislative purpose is "to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." Ark. Code Ann. § 16-111-102(a) (1987).

Appellant contended in his petition that the trial court lacked jurisdiction over his case, and thus his conviction and sentence were void, because he was charged by information filed by the prosecuting attorney instead of by grand jury indictment. We disagree.

Article 2, Section 8 of the Arkansas Constitution requires that a defendant shall not "be held to answer a criminal charge unless on the presentment of indictment of a grand jury ." Amendment 21, Section 1, however, provides that informations may be used in the same manner as indictments. See Hagen v. State, 315 Ark. 20, 23, 864 S.W.2d 856, 858 (1993). Because there is not a justiciable controversy that entitles appellant to relief, the circuit court correctly denied appellant's petition.

Affirmed.