State v. Earl

Supreme Court of Arkansas

State v. Earl

984 S.W.2d 442, 336 Ark. 271, 1999 Ark. LEXIS 42

CourtSupreme Court of Arkansas

DecidedJanuary 28, 1999

DocketCR 97-1310

StatusPublished

Cited by7 cases

This text of 984 S.W.2d 442 (State v. Earl) 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.

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State v. Earl, 984 S.W.2d 442, 336 Ark. 271, 1999 Ark. LEXIS 42 (Ark. 1999).

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Per Curiam.

Appellee Hezile Earl, Jr., seeks the recaE of this court’s mandate issued on November 10, 1998, and bases his motion on the Supreme Court’s recent decision in Knowles v. Iowa, No. 97-7597 (U.S. Sup. Ct. Dec. 8, 1998). There, the Supreme Court held that a search incident to a traffic violation conducted pursuant to Iowa Code Ann. § 805.1(4) violated the Fourth Amendment. While § 805.1(4) is simEar or equivalent to our Ark. R. Crim. P. 5.5, which was in issue in Earl’s case here, Earl, unlike the defendant in Knowles, did not challenge Rule 5.5’s constitutionality. See State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998).¹ In fact, this court emphasized this point, stating the foEowing:

We are aware the American Bar Association has recommended that Rule 5.5 and similar rules employed in other jurisdictions not be used due to questions pertaining to its constitutional validity. However, Rule 5.5’s constitutionality is not before us.

Id. at 496, 970 S.W.2d at 793.

Thus, Earl never timely challenged Rule 5.5’s constitutionality at his hearing below or on appeal, and he did so only after the Knowles case was decided and after our court’s mandate was issued. Earl cites no authority that supports the recall of a mandate in these circumstances, and we are unaware of any. Consequently, we deny Earl’s motion to recall mandate.

Brown, Imber, and Thornton, JJ., dissent.

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Per Curiam.

Appellee Hezile Earl, Jr., seeks the recaE of this court’s mandate issued on November 10, 1998, and bases his motion on the Supreme Court’s recent decision in Knowles v. Iowa, No. 97-7597 (U.S. Sup. Ct. Dec. 8, 1998). There, the Supreme Court held that a search incident to a traffic violation conducted pursuant to Iowa Code Ann. § 805.1(4) violated the Fourth Amendment. While § 805.1(4) is simEar or equivalent to our Ark. R. Crim. P. 5.5, which was in issue in Earl’s case here, Earl, unlike the defendant in Knowles, did not challenge Rule 5.5’s constitutionality. See State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998).¹ In fact, this court emphasized this point, stating the foEowing:

We are aware the American Bar Association has recommended that Rule 5.5 and similar rules employed in other jurisdictions not be used due to questions pertaining to its constitutional validity. However, Rule 5.5’s constitutionality is not before us.

Id. at 496, 970 S.W.2d at 793.

Thus, Earl never timely challenged Rule 5.5’s constitutionality at his hearing below or on appeal, and he did so only after the Knowles case was decided and after our court’s mandate was issued. Earl cites no authority that supports the recall of a mandate in these circumstances, and we are unaware of any. Consequently, we deny Earl’s motion to recall mandate.

Brown, Imber, and Thornton, JJ., dissent.

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984 S.W.2d 442, 336 Ark. 271, 1999 Ark. LEXIS 42, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-earl-ark-1999.

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