Lynch v. State

863 S.W.2d 834, 315 Ark. 47, 1993 Ark. LEXIS 611
CourtSupreme Court of Arkansas
DecidedNovember 8, 1993
DocketCR 93-293
StatusPublished
Cited by16 cases

This text of 863 S.W.2d 834 (Lynch v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lynch v. State, 863 S.W.2d 834, 315 Ark. 47, 1993 Ark. LEXIS 611 (Ark. 1993).

Opinions

Tom Glaze, Justice.

On June 25, 1991, appellant was arrested for burglary and charged with the crime the next day. He was convicted by jury for breaking or entering on August 20, 1992, and sentenced to fifteen years under the Habitual Offender Statute. On appeal, appellant argues three points for reversal.

First, appellant urges that Faulkner County Circuit Judge David Reynolds had no authority to preside over five pretrial hearings or appellant’s trial. The events appellant mentions in support of his argument begin with Faulkner County Circuit/Chancery Judge Watson Villines’ initial pretrial hearing on December 6, 1991. At that hearing, Judge Villines removed appellant’s appointed counsel because of appellant’s dissatisfaction with her. The judge then appointed new counsel, Kenneth Fuchs, who represented appellant throughout the proceedings below and represents him now on appeal.

Judge Villines held a second pretrial hearing on March 2, 1992, but on May 1, 1992, he signed an order transferring the case to Faulkner County Chancery Judge Andre McNeil, apparently because Villines had previously, as an attorney, represented the appellant in an earlier criminal matter. Subsequently, Circuit Judge Reynolds’ case coordinator was doing her customary computer review of pending criminal cases and without Reynolds’ knowledge, or an order, the coordinator transferred appellant’s case to Reynolds’ docket. Judge Reynolds held three pretrial hearings, and later, when appellant filed a speedy trial motion to dismiss on the day set for trial, August 14, 1992, Reynolds held another pretrial hearing. In considering appellant’s speedy trial motion, Reynolds discovered that the appellant’s case had appeared on both Villines’ and McNeil’s docket, and Reynolds stated he needed to learn what had occurred in those two courts before he could rule on appellant’s motion. He then continued appellant’s trial until August 20, 1992.

Two days before trial, Judge Villines, with Judge Reynolds present, conducted a hearing to explain for the record the administrative court history of appellant’s case, and how it became Judge Reynolds’. Appellant’s attorney, Fuchs, expressed surprise over Judge Villines presiding over the hearing, and stated he thought Reynolds would be presiding. Fuchs objected to Villines hearing the matter, stating Villines had no jurisdiction to do so and that appellant would be prejudiced because Judge Reynolds had become familiar with the case and was more knowledgeable of the motions and matters covered at earlier pretrial hearings. Judge Villines recessed the August 18th hearing to the next day so Fuchs could offer further argument, but on August 19th, Judge Reynolds presided and announced Villines had set aside his May 1, 1992 order transferring appellant’s case to Chancery Judge McNeil’s division so the dockets would correctly reflect appellant’s case to be in Reynolds’ division. Villines’ order signed, dated, and entered on August 19, 1992, set out his findings.

Appellant relies on Ark. Code Ann. § 16-13-403(a) (Supp. 1993), which in relevant part provides that circuit judges and chancellors may by agreement temporarily exchange districts-circuits, and may hold court for each other for such length of time as may be practicable. Provision 403(a)(2) further provides the agreements shall be signed by the judges so agreeing and entered on the record. Appellant argues that, when Judge Villines transferred appellant’s case to Chancery Judge McNeil’s division and McNeil had signed the order, only McNeil had jurisdiction to transfer the cause to Reynolds’ division. We disagree.

This court had previously ruled that there was no statutory authorization for the exchange of divisions among circuit and chancery judges within a judicial district. Lee v. McNeil, 308 Ark. 114, 823 S.W.2d 837 (1992). Section 16-13-403, as amended, now authorizes such exchange of circuits between circuit judges and chancellors within the same districts-circuits.1 While § 16-13-403(a)(2) provides that the judges agreeing to the exchange shall sign such an agreement, the judges affixing their signatures to the agreement is not a jurisdictional act necessary to effect the exchange. It is the enactment of § 16-13-403 and the judges’ agreement thereunder that empowers the judge-on-exchange to assume authority to hear or try a case. As a circuit judge, Reynolds indisputably had power to hear appellant’s criminal case. Ark. Const, art. 7, § 11; § 16-13-403(b)(l) (Supp. 1993), and Lee, 308 Ark. 114, 823 S.W.2d 837.

Appellant is certainly correct in contending § 16-13-403(a)(2) mandates that the judges, agreeing to exchange a case, sign the agreement and enter it on the record. Nonetheless, such a non-jurisdictional error may be waived. See Finley v. State, 295 Ark. 357, 748 S.W.2d 643 (1988). In Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984), Boone contended on appeal that reversible error had occurred when the trial court had not made him aware of the trial court’s order changing venue so Boone’s trial would take place in Clay County rather than Craighead County. At the beginning of trial, the trial court asked the parties if they were ready for trial and Boone’s counsel replied, “We are not aware this case had been transferred so we don’t consent, but we are here.” The court held counsel’s statement did not constitute an objection. It further ruled that an objection to be effective must be made at the first opportunity and must apprise the trial court of the specific ground upon which it is based. The court con-eluded Boone had failed to state the basis for his objection and failed to obtain a ruling from the trial court.'

Here, appellant became aware as early as August 3, 1992, that Judge Reynolds would be presiding in this case, and accordingly, Reynolds conducted extensive pretrial hearings in advance of the scheduled trial date which was August 20, 1992. Reynolds held other pretrial hearings on August 12th, 14th, 19th and on the day of trial. As previously mentioned, Reynolds also attended the pretrial hearing on August 18 when appellant’s main focus was that he objected to Judge Villines presiding over any matters pertaining to appellant’s case. Appellant did say at the August 18th hearing that his case “was Judge McNeil’s case” and “no order had been signed returning the case to Villines or transferring it to Reynolds.” Nonetheless, appellant never objected to Reynolds’ presiding over any of the pretrial hearings or appellant’s trial. To the contrary, appellant’s counsel stated over and over again that Judge Reynolds had heard the pretrial hearings, and he was the judge most knowledgeable and familiar with the case. Clearly, Judge Villines had had limited contact with appellant’s case and was indisputably unwanted as a presiding judge by the appellant. In addition, Judge McNeil’s only contact with appellant’s case was the May 1, 1992 order transferring the matter to McNeil.

In sum, appellant waited until two days prior to trial to raise his objection that § 16-13-403(a)(2) had not been complied with, and he only raised the issue then after Judge Reynolds suggested he needed records concerning what action, if any, Villines and McNeil might have previously taken in the case so Reynolds could rule on appellant’s speedy trial motion. In Phillips v. State, 266 Ark.

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Cite This Page — Counsel Stack

Bluebook (online)
863 S.W.2d 834, 315 Ark. 47, 1993 Ark. LEXIS 611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lynch-v-state-ark-1993.