Noble v. State

Supreme Court of Arkansas

Noble v. State

932 S.W.2d 752, 326 Ark. 462, 1996 Ark. LEXIS 570

CourtSupreme Court of Arkansas

DecidedOctober 28, 1996

DocketCR 96-1107

StatusPublished

Cited by7 cases

This text of 932 S.W.2d 752 (Noble 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

Noble v. State, 932 S.W.2d 752, 326 Ark. 462, 1996 Ark. LEXIS 570 (Ark. 1996).

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Opinion

Per CURIAM.

Petitioner, Sherman Noble, has petitioned this court to issue a writ of mandamus to the Honorable Fred Davis, III, Circuit Judge, and to Jeanette Hence, Circuit Clerk. We decline to issue the writ.

The partial record shows that on May 21, 1996, the circuit court entered an order adverse to petitioner. Thirty-one days later, on June 21, 1996, petitioner filed a notice of appeal and designation of record. On June 26, 1996, the circuit judge dismissed the notice of appeal, and the circuit clerk refuses to tender a record to this court.

The circuit judge was in error in dismissing the appeal. It is not within the authority of a trial court to pass on the validity of a notice of appeal and dismiss it sua sponte. Barnes v. State, 322 Ark. 814, 912 S.W.2d 405 (1995). At the least, a partial record suitable for tender to the appellate court should be prepared whereby the appellant may tender the record, which would allow the appellate court to determine whether the appeal should be lodged. Barnes, 322 Ark. at 815, 912 S.W.2d at 406. However, even though the circuit judge erred, we decline to issue a writ of mandamus. The notice of appeal was untimely, see Ark. R. App. P. 4(a), and it would be a vain and useless act to mandamus the circuit judge to reinstate the notice of appeal and then dismiss the appeal in this court. The law does not require a vain and useless act. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995).

Writ declined.

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Per CURIAM.

Petitioner, Sherman Noble, has petitioned this court to issue a writ of mandamus to the Honorable Fred Davis, III, Circuit Judge, and to Jeanette Hence, Circuit Clerk. We decline to issue the writ.

The partial record shows that on May 21, 1996, the circuit court entered an order adverse to petitioner. Thirty-one days later, on June 21, 1996, petitioner filed a notice of appeal and designation of record. On June 26, 1996, the circuit judge dismissed the notice of appeal, and the circuit clerk refuses to tender a record to this court.

The circuit judge was in error in dismissing the appeal. It is not within the authority of a trial court to pass on the validity of a notice of appeal and dismiss it sua sponte. Barnes v. State, 322 Ark. 814, 912 S.W.2d 405 (1995). At the least, a partial record suitable for tender to the appellate court should be prepared whereby the appellant may tender the record, which would allow the appellate court to determine whether the appeal should be lodged. Barnes, 322 Ark. at 815, 912 S.W.2d at 406. However, even though the circuit judge erred, we decline to issue a writ of mandamus. The notice of appeal was untimely, see Ark. R. App. P. 4(a), and it would be a vain and useless act to mandamus the circuit judge to reinstate the notice of appeal and then dismiss the appeal in this court. The law does not require a vain and useless act. Jacobs v. State, 321 Ark. 561, 906 S.W.2d 670 (1995).

Writ declined.

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Bluebook (online)

932 S.W.2d 752, 326 Ark. 462, 1996 Ark. LEXIS 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noble-v-state-ark-1996.

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