State v. Garrison

615 S.W.2d 371, 272 Ark. 470, 1981 Ark. LEXIS 1300

• Court: Supreme Court of Arkansas
• Decided: May 18, 1981
• Docket: CR 80-248
• Status: Published

Opinions

Frank Holt, Justice.

Appellee, sheriff of Arkansas County, was charged by information directly in circuit court with permitting escape in the first degree. Ark. Stat. Ann. § 41-2813 (Repl. 1977). The information alleged that the appellee allowed Arthur James Wilson, Jr., to escape while in his supervision and custody. Pending trial, the circuit court granted appellee’s motion for a preliminary hearing to determine if probable cause existed to justify the charge. The evidence at the hearing showed that Wilson had been causing numerous problems by his aberrant and unhygienic behavior while in custody at the county jail. The appellee sheriff checked Wilson out of the jail one night at 8 p.m. and drove him to Little Rock. The evidence is in conflict as to whether the appellee told Wilson to get out of the car upon reaching Little Rock or whether Wilson escaped from the car. Wilson was taken into custody later that evening by a local policeman. Following the probable cause hearing, the court dismissed the charges. The state appeals from this determination, raising the propriety of the hearing itself as well as several evidentiary questions.

The state first argues that the appellee was not entitled to a judicial review of the prosecutor’s filing an information charging him with the alleged offense. We agree. A preliminary examination to determine if probable cause exists for an accusation did not exist at common law. 21 Am. Jur. 2d Criminal Law § 442 (1962). In Gerstein v. Pugh, 420 U.S. 103 (1975), the court reiterated its prior holding that a judicial hearing is not prerequisite to prosecution by information, holding, however, that such a judicial determination of probable cause is required for extended restraint of liberty following an arrest. The latter is not involved here. Cf. Renton v. State, 265 Ark. 223, 577 S.W. 2d 594 (1979). There is no constitutional provision for such a hearing, as here, nor is one constitutionally required. Constitution of Arkansas (1874), Amendment 21. Payne v. State, 226 Ark. 910, 295 S.W. 2d 312 (1956). See also Lem Woon v. Oregon, 229 U.S. 586 (1975); Beck v. Washington, 369 U.S. 541 (1962); Wharton’s Criminal Procedure, § 144 (12th Ed. 1974).

Neither is there statutory authority for such a hearing. Any reliance by appellee on Rule 8.3 (c) of the Arkansas Rules of Criminal Procedure and Ark. Stat. Ann. § 43-618 (Repl. 1977) is misplaced. Both of these apply, by their terms, to situations in which the accused is in custody and the preliminary review is to determine if sufficient probable cause exists to further detain the accused. That is not the situation here as the appellee was not incarcerated. Charges against him had already been filed directly in circuit court, and there was a pretrial release based upon his own recognizance.

In the circumstances, we hold that the court erred in conducting a preliminary hearing and dismissing the information for want of probable cause.

Neither do we find merit in the appellee’s contention that the state failed to object to the proceeding and, therefore, is precluded from raising the issue on appeal. A question as to jurisdiction may be raised for the first time on appeal. Haskins v. State, 264 Ark. 454, 572 S.W. 2d 411 (1978). Here, the court was without authority and therefore jurisdiction to conduct this proceeding.

We deem it unnecessary to discuss other contentions raised by the appellant.

Reversed and remanded.

Adkisson, C.J., and Purtle, J., dissent.