State v. Tipton

779 S.W.2d 138, 300 Ark. 211, 1989 Ark. LEXIS 481

Opinions

Jack Holt, Jr., Chief Justice.

The trial court dismissed with prejudice the second degree murder charge pending against appellee Gary D. Tipton because the State failed to bring Tipton to trial within the twelve-month period set forth in Ark. R. Crim. P. 28.1(c). The State attempts to appeal from the trial court’s order pursuant to Ark. R. Crim. P. 36.10, alleging that jurisdiction lies in this court under Ark. Sup. Ct. R. 29(l)(c). We find that under the circumstances the State has no right to appeal under Rule 36.10 and, therefore, we dismiss the appeal.

As a general rule, the State has no right to appeal except as conferred by constitution or rule of criminal procedure. State v. Hurst, 296 Ark. 132, 752 S.W.2d 749 (1988). Ark.R. Crim. P. 36.10(b) and (c) authorizes the State to appeal following either a misdemeanor or felony prosecution if “the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and the correct and uniform administration of the criminal law requires review by the Supreme Court." (Emphasis added.)

It is clear that the State’s point for reversal that the trial court erred in dismissing the charge and in denying its motion for an excludable period does not involve the correct and uniform administration of the criminal law, a prerequisite for appeal under Rule 36.10(b) and (c). It simply concerns application of our speedy trial rules. Accordingly, the State cannot appeal from the trial court’s order.

Appeal dismissed.

Purtle, Dudley, and Newbern, JJ., concur. Glaze, J., concurs in part and dissents in part. Hickman and Hays, JJ., dissent.