24.3 and 33.3; SUPREME COURT RULE 1-2

___ S.W.3d ___

Supreme Court of Arkansas

Delivered February 15, 2001

Per Curiam. The Arkansas Supreme Court Committee on Criminal Practice submitted proposals and recommendations for changes in the Arkansas Rules of Criminal Procedure and the Rules of the Supreme Court. The Committee's suggestions were published in our per curiam order of November 30, 2000 so that members of the bench and bar could have an opportunity to comment. We thank those who took the time to review the proposals and submit comments. We again express our gratitude to the Committee for their work with respect to the rules.

At this time, we adopt several of the proposals and republish the rules and Reporter's Notes as set out below. These amendments are effective immediately.

ARKANSAS RULES OF CRIMINAL PROCEDURE

Rule 24.3. Pleading by defendant.

(a) A plea of guilty or nolo contendere shall be received only from the defendant himself in open court, except that counsel may enter a plea of guilty on behalf of a defendant in misdemeanor cases where only a fine is imposed by the court. If the defendant is a corporation the plea may be received from counsel or an authorized corporate officer.

(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, onappeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.

(c) A defendant may plead nolo contendere only with the consent of the court. The court shall not accept a plea of nolo contendere unless it is satisfied, after due consideration of the views of the parties, that the interest of the public in the effective administration of justice would thereby be served.

(d) No plea of guilty or nolo contendere shall be accepted by any court unless the prosecuting attorney of the governmental unit in which the offense occurred is given opportunity to be heard at the time the plea is tendered. In any criminal cause in which trial by jury is a right, a court shall not accept a plea of guilty or nolo contendere unless the prosecuting attorney has assented to the waiver of trial by jury.

Addition to Reporter's Notes, 2001 Amendment:

The last sentence was added to subdivision (d). It does not change prior practice, but incorporates the requirement found in Rule 31.1 that the prosecuting attorney must not only be given the opportunity to be heard in response to a plea, but also he must assent if a jury trial is to be waived.

2. Rule 33.3 is amended to provide that a motion for new trial which is filed before the judgment is entered should be treated as filed on the day after the judgment is entered.

Rule 33.3. Posttrial motions.

(a)A person convicted of either a felony or misdemeanor may file a motion for new trial or any other application for relief. Such pleadings shall include a statement that the movant believes the action to be meritorious and is not offered for the purpose of delay. A copy of any such motion shall be served on the representative of the prosecuting party. The trial court shall designate a date certain, if a hearing is requested or found to be necessary, to take evidence, hear, and determine all of the matters presented. The hearing shall be held within ten (10) days of the filing of any motion or application unless circumstances justify that the hearing or determination be delayed.

(b) All posttrial motions or applications for relief must be filed within thirty days after the date of entry of judgment. A posttrial motion or application filed before the entry of judgment shall become effective and be treated as filed on the day after the judgment is entered.

(c) Upon the filing of a posttrial motion or application for relief in the trial court, the time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications. If the trial court neither grants nor denies a posttrial motion or application for relief within thirty (30) days after the date the motion or application is filed, the motion or application shall be deemed denied as of the 30th day.

Addition to Reporter's Notes, 2001 Amendment:

The rule has been reorganized and divided into three subdivisions. The second sentence of subdivision (b) is new and effectively overturns a line of cases which held that a posttrial motion that is filed prior to the entry of the judgment is untimely and ineffective. See Brown v. State, 333 Ark. 698, 970 S.W.2d 287 (1998); Davies v. State, 64 Ark. App. 12, 977 S.W. 2d 900 (1998); Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996); and Webster v. State, 320 Ark. 393, 896 S.W.2d 890 (1995). The second sentence of subdivision (c) provides that a motion not ruled on by the court within 30 days of its filing (or within 30 days of the date it is treated as filed) is "deemed denied as of the 30th day." This provision also appears in Rule 2(b)(1) of the Rules of Appellate Procedure - Criminal. The time within which to file a notice of appeal is found in Rule 2 of the Rules of Appellate Procedure - Criminal.

RULES OF THE SUPREME COURT AND COURT OF APPEALS

3. Supreme Court Rule 1-2 is amended by adding a new paragraph (h).

Rule 1-2. Appellate Jurisdiction of the Supreme Court and Court of Appeals.

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(h) In all appeals from criminal convictions or postconviction relief matters heard in the Court of Appeals, the appellant shallnot be required to petition for rehearing in the Court of Appeals or review in the Supreme Court following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error. When the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the appellant shall be deemed to have exhausted all available state remedies.

Addition to Reporter's Notes, 2001 Amendment:

Subdivision (h) was added in response to language in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S. Ct. 1728 (1999)("[N]othing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable. Section 2254(c), in fact, directs federal courts to consider whether a habeas petitioner has "the right under the law of the State to raise, by any available procedure, the question presented," . . . . The exhaustion doctrine, in other words, turns on an inquiry into what procedures are "available" under state law. In sum, there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available.") Id., 526 U.S. at 848. Petitions for review, which are discretionary under subdivision (e) of this rule, should not be required in order for a state prisoner to exhaust his state remedies.