State v. Hill

Supreme Court of Arkansas

State v. Hill

811 S.W.2d 323, 306 Ark. 375, 1991 Ark. LEXIS 392

CourtSupreme Court of Arkansas

DecidedJuly 15, 1991

DocketCR 91-159

StatusPublished

Cited by8 cases

This text of 811 S.W.2d 323 (State v. Hill) 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

State v. Hill, 811 S.W.2d 323, 306 Ark. 375, 1991 Ark. LEXIS 392 (Ark. 1991).

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Opinion

Per Curiam.

The petitioner, State of Arkansas, requests a writ of certiorari on the basis that the trial court lacks the power to amend the charge of the Prosecuting Attorney of Faulkner County against the respondent, Jerry Hill, from theft of property (Ark. Code Ann. § 5-36-103 (1987) (a felony)) to theft of a trade secret (Ark. Code Ann. § 5-36-107 (1987) (a misdemeanor)).

The writ of certiorari is not one of right, but is to be granted or denied within the discretion of the court from which it is sought; certiorari may be granted where the court lacks the power to act as it has purported to do. Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988).

In State v. Brooks, 301 Ark. 257, 783 S.W.2d 368 (1990), this court noted that the duty of charging an accused with a felony is reserved either to the grand jury or the prosecutor, Ark. Const, amend. 21, § 1; by amending the charge from a felony to a misdemeanor, in that case, over the State’s objection, the trial court encroached upon the prosecutor’s constitutional duties and breached the separation of powers doctrine. See also United States v. Edmonson, 792 F.2d 1492 (9th Cir. 1986), cert. denied, 479 U.S. 1037 (1987); State v. Laury, 397 So.2d 960 (Fla. App. 1981); Petition of United States, 306 F.2d 737 (9th Cir. 1962).

Consequently, the trial court’s amendment, in this case, of a felony charge to that of a misdemeanor impermissibly usurped the prosecutor’s constitutional duties.

The petition for writ of certiorari is granted.

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Per Curiam.

The petitioner, State of Arkansas, requests a writ of certiorari on the basis that the trial court lacks the power to amend the charge of the Prosecuting Attorney of Faulkner County against the respondent, Jerry Hill, from theft of property (Ark. Code Ann. § 5-36-103 (1987) (a felony)) to theft of a trade secret (Ark. Code Ann. § 5-36-107 (1987) (a misdemeanor)).

The writ of certiorari is not one of right, but is to be granted or denied within the discretion of the court from which it is sought; certiorari may be granted where the court lacks the power to act as it has purported to do. Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129 (1988).

In State v. Brooks, 301 Ark. 257, 783 S.W.2d 368 (1990), this court noted that the duty of charging an accused with a felony is reserved either to the grand jury or the prosecutor, Ark. Const, amend. 21, § 1; by amending the charge from a felony to a misdemeanor, in that case, over the State’s objection, the trial court encroached upon the prosecutor’s constitutional duties and breached the separation of powers doctrine. See also United States v. Edmonson, 792 F.2d 1492 (9th Cir. 1986), cert. denied, 479 U.S. 1037 (1987); State v. Laury, 397 So.2d 960 (Fla. App. 1981); Petition of United States, 306 F.2d 737 (9th Cir. 1962).

Consequently, the trial court’s amendment, in this case, of a felony charge to that of a misdemeanor impermissibly usurped the prosecutor’s constitutional duties.

The petition for writ of certiorari is granted.

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Bluebook (online)

811 S.W.2d 323, 306 Ark. 375, 1991 Ark. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hill-ark-1991.

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