State v. Richardson
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SUPREME COURT OF ARKANSAS
No.
CR08-1021
Opinion Delivered April 16, 2009
STATE OF ARKANSAS,
APPELLANT,
VS.
AN APPEAL FROM THE CIRCUIT
COURT OF PHILLIPS COUNTY,
ARKANSAS, NO. CR-06-37,
HONORABLE L.T. SIMES, CIRCUIT
JUDGE
CLARENCE RICHARDSON,
APPELLEE,
APPEAL DISMISSED.
ELANA CUNNINGHAM WILLS, Associate Justice
Appellee Clarence Richardson was charged with two counts of theft of property in
February 2006.1 The Phillips County Circuit Court initially dismissed the charges based on
an allegedly defective search warrant. However, this court reversed the circuit court and
remanded the matter for trial. State v. Richardson, 373 Ark. 1, 4, ___ S.W.3d ___, ___
(2008). Following the remand, Richardson’s trial was scheduled for May 21, 2008.
On the morning the trial began, Richardson attempted to waive a jury trial. The State
agreed to the jury waiver, but the circuit court stated its belief that it was “best in this
situation that I not be an arbiter of the facts in this case.” The court thus denied the parties’
1
Richardson was charged along with six other members of what was, at the time,
the West Helena City Council. See State v. Richardson, 373 Ark. 1, 2, ___ S.W.3d ___,
___ (2008).
CR08-1021
attempt to waive a jury trial. The court then proceeded to seat a jury; twelve jurors and two
alternates were selected.
At the conclusion of the trial, the jury retired to deliberate at nearly 4:00 in the
afternoon on Wednesday, May 28, 2008. The jurors deliberated until nearly 10:00 that
evening. After the jurors informed the court that they were deadlocked, the court gave them
an “Allen instruction” the next morning, requesting that they retire for further deliberations
in an attempt to reach a verdict.
Later that day, however, a juror sent the court a note stating that one of the other
jurors had, among other things, been talking on her cell phone. After questioning the juror,
the court discharged her and seated one of the alternate jurors. The court instructed the jury
to disregard all of its previous deliberations and commence anew with the newly seated
juror. The jury retired at approximately 5:30 p.m., and at 9:01 p.m., it came back with guilty
verdicts on both charges.
At a hearing on June 2, 2008, Richardson presented the court with an oral motion for
new trial.2 He argued that the court had erred in denying the request to waive a jury, and he
also suggested that a new trial was warranted because of irregularities in the jury’s
deliberations. After hearing arguments from Richardson and the State, the court took the
matter under advisement and subsequently issued an order on June 5, 2008, granting
2
At one point in the hearing, Richardson stated that he had “reduced this to
writing,” but the record does not contain a written motion for new trial.
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Richardson’s motion for new trial. The court agreed that it should not have denied
Richardson’s request to waive a jury trial, and it also determined that the circumstances
surrounding the discharge of the juror warranted a new trial. The State filed a timely notice
of appeal, and now urges this court that the trial court erred in granting Richardson’s motion
for new trial.
Before addressing the merits of the State’s arguments, we must first consider whether
this appeal is properly before us. The procedural posture of this case is unique, and although
the State asserts that this court’s jurisdiction is proper under Ark. R. App. P.—Crim. 3, we
must determine whether there is an appealable order.
The oral motion for a new trial in this case was made before the entry of any
judgment and commitment order. Under Rule 33.3 of the Arkansas Rules of Criminal
Procedure, a posttrial motion or application for relief that is filed before the entry of
judgment shall become effective and be treated as filed on the day after the judgment is
entered. Ark. R. Crim. P. 33.3(b). Here, however, no judgment was ever entered. Instead,
as mentioned above, Richardson made an oral motion for new trial3 after the jury returned
with a guilty verdict, but before the jury had the opportunity to deliberate on a sentence. The
jury’s announcement of a guilty verdict did not constitute the entry of a judgment. Thus,
3
Richardson never “filed” a motion for new trial. Rule 33.3 appears to
contemplate a written motion for posttrial relief, stating that a person “convicted of either
a felony or misdemeanor may file a motion for new trial or any other application for
relief. . . . A copy of such motion shall be served on the representative of the prosecuting
party.” Ark. R. Civ. P. 33.3(a) (emphasis added).
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there was never an effective judgment and commitment order. See Bradford v. State, 351
Ark. 394, 94 S.W.3d 904 (2003) (a judgment and commitment order is not effective until
it is entered of record); Sup. Ct. Admin. Order No. 2 (a judgment, decree, or order is
“entered” only when the clerk “denote[s] the date and time that a judgment, decree or order
is filed by stamping or otherwise marking it with the date and time and the word ‘filed.’”).
See also Ark. R. Crim. P. 33.2 (2008) (“Upon the return of a verdict of guilty in a case tried
by a jury, . . . sentence may be pronounced and the judgment of the court may be then and
there entered”). Accordingly, because no judgment was ever entered, Richardson’s attempt
to move for a new trial was premature and ineffective. When a motion is void, this court can
treat it as though it was never made. See Brown v. State, 333 Ark 698, 970 S.W.2d 287
(1998).4
Given that Richardson’s motion for new trial was ineffective, we conclude that the
circuit court’s order granting the untimely posttrial motion was a nullity.5 There appears to
4
We acknowledge that Brown v. State, supra, which held that a motion for new
trial filed before the entry of a judgment is ineffective, predates the 2001 amendment to
Ark. R. Crim. P. 33.3 that treats a premature motion for new trial as being filed on the
day after the judgment was entered. The fact remains in this case, however, that no
judgment was ever entered. Thus, the motion for new trial is still, as of this date,
ineffective.
5
A circuit court can, of course, sua sponte declare a mistrial. See, e.g., Wicks v.
State, 270 Ark. 781, 606 S.W.2d 366 (1980) (a trial court has a duty to intervene, without
an objection, and correct a serious error either by an admonition to the jury or by
ordering a mistrial). Indeed, at the hearing on Richardson’s new-trial motion, the State
argued that the effect of the court’s order purporting to grant a new trial was effectively
to discharge the jury and terminate the trial after a finding of guilt, which was tantamount
to granting a mistrial. The court, however, never ruled on the issue, and the State does
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CR08-1021
be no provision in our Rules of Criminal Procedure that permits a circuit court to grant a
new trial sua sponte. Compare Ark. R. Civ. P. 59(e) (2008) (a court may “on its own
initiative order a new trial for any reason for which it might have granted a new trial on
motion of the party.”), with Ark. R. Crim. P. 33.1(a) (a “person convicted of . . . a felony .
. . may file a motion for new trial or any other application for relief”). The absence of a
valid judgment and commitment order makes the motion for new trial ineffective, thus
depriving the circuit court of any basis in the law for granting the motion.
As a
consequence, the circuit court’s order granting a new trial is a nullity. Further, because there
is no valid order from which the State could have taken an appeal, the State’s appeal is
dismissed.
Appeal dismissed.
not raise this argument on appeal.
-5-
CR08-1021
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