ARKANSAS SUPREME COURT
ADVANCE REPORTS
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IN THIS ISSUE
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Opinions delivered
September 18, 2003

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Arkansas Gas Consumers, Inc. v. Arkansas Pub. Serv. Comm'n (Brown, J.) 02-1312
Public service commission — Statutory authority; general ratemaking authority did not grant PSC power to initiate Policy; PSC previously recognized it had no authority to provide low-income assistance; General Assembly added no new power regarding natural gas in Act 204 of 2003; PSC did not have statutory authority to develop & mandate policy; matter reversed where PSC lacked authority to mandate program such as Policy. [HTML, WP5.1]

Brown v. State (Glaze, J.) CR01-1196
Criminal procedure — Custodial statement; officers' statements were ambiguous promises; appellant not so vulnerable that custodial statement was involuntary; motion to suppress properly denied. [HTML, WP5.1]

Gaines v. State (Hannah, J.) CR02-868
Criminal law — Lesser-included offenses; appellant failed to demonstrate that carnal abuse in the third degree was lesser-included offense of rape under any of three tests under Ark. Code Ann. § 5-1-110(b); trial court properly refused to instruct jury on carnal abuse in third degree; rape of victim less than fourteen; appellant's belief as to age of victim irrelevant; Ark. Code Ann. § 5-14-102 furthers state's interest in protecting children; appellant failed to demonstrate that statute violated his due process rights & right to fair trial as guaranteed by U.S. & Arkansas Constitutions. [HTML, WP5.1]

State v. Sola (Brown, J.) CR02-1278
Criminal law — DWI, fourth offense; June 14 2001, violation became appellee's fourth offense for DWI that had occurred within five years of first offense; court's analysis consistent with intent of General Assembly; to convict appellee of DWI, third offense, for the June 14 violation would have thwarted plain language of Ark. Code Ann. § 5-65-111(b)(3); model jury instruction not controlling in interpreting Ark. Code Ann. § 5-64-111(b)(3); proof of prior convictions must come in punishment phase of bifurcated trial to protect defendant from possible prejudice during guilt phase. [HTML, WP5.1]

APPENDIX

RULES ADOPTED OR AMENDED BY PER CURIAM ORDER

In Re: Appointment of Counsel in Criminal Cases (Per Curiam) [HTML, WP5.1]

PROFESSIONAL CONDUCT MATTERS

In Re: Pervis (Per Curiam) [HTML, WP5.1]

APPOINTMENTS TO COMMITTEES

In Re: Committee on Model Jury Instructions—Civil (Per Curiam) [HTML, WP5.1]


OPINIONS NOT DESIGNATED FOR PUBLICATION

Campbell v. State, CR 03-570 (Per Curiam), Pro Se Motion for Appointment of Counsel denied September 18, 2003. [HTML, WP5.1]

Dilworth v. State, CR 02-1016 (Per Curiam), Pro Se Motion to Expedite Appeal denied September 18, 2003. [HTML, WP5.1]

Dyas v. State, CR 02-959 (Per Curiam), affirmed September 18, 2003. [HTML, WP5.1]

Green v. Arnold, CR 03-699 (Per Curiam), Pro Se Petition for Writ of Mandamus moot September 18, 2003. [HTML, WP5.1]

Jones v. Arkansas Department of Correction, 02-412 (Per Curiam), rebriefing ordered September 18, 2003. [HTML, WP5.1]

Kelly v. Davis, 03-954 (Per Curiam), Pro Se Petition for Writ of Mandamus moot September 18, 2003. [HTML, WP5.1]

King v. State, CR 02-645 (Per Curiam), rebriefing ordered September 18, 2003. [HTML, WP5.1]

Lamar v. State, CR 01-909 (Per Curiam), Pro Se Motion for Photocopy of Transcript or Access to Transcript at Public Expense denied September 18, 2003. [HTML, WP5.1]

Marlin v. State, CR 03-586 (Per Curiam), Pro Se Motion for Rule on Clerk to Proceed with Appeal of Postconviction Orders denied September 18, 2003. [HTML, WP5.1]

State v. Sherwin-Hagan, CR 03-249 (Per Curiam), Pro Se Motion for Appointment of Counsel and Motion for Extension of Time to File Brief remanded September 18, 2003. [HTML, WP5.1]

Williams v. Burnett, CR 03-857 (Per Curiam), Pro Se Motion to Dismiss Petition for Writ of Mandamus Without Prejudice granted September 18, 2003. [HTML, WP5.1]

ORIGINAL SYLLABUS

TOM GLAZE, JUSTICE:

CR01-1196. Joshua Brown v. State of Arkansas, from Benton Circuit. Affirmed. Corbin and Thornton, JJ., not participating. (8 PAGES PUBLISHED) [HTML, WP5.1]

ROBERT L. BROWN, JUSTICE:

CR02-1278. State of Arkansas v. Joseph K. Sola, from Pope Circuit. Reversed and Remanded. Thornton, J., not participating. (11 PAGES PUBLISHED) [HTML, WP5.1]

02-1312. Arkansas Gas Consumers, Inc. v. Arkansas Public Service Commission, from Arkansas Public Service Commission. Reversed. Arkansas Court of Appeals Reversed. Arnold, C.J., Glaze and Thornton, JJ., dissent. (23 PAGES + 22-PAGE DISSENT PUBLISHED) [HTML, WP5.1]

JIM HANNAH, JUSTICE:

CR02-868. Eric Gaines v. State of Arkansas, from Pulaski Circuit, Fourth Division. Affirmed. Thornton, J., not participating. (12 PAGES PUBLISHED) [HTML, WP5.1]

PER CURIAM OPINION:

CR02-959. Jimmie Lee Dyas v. State of Arkansas, from Little River Circuit. Affirmed. Thornton, J., not participating. (2 PAGES UNPUBLISHED) [HTML, WP5.1]

PER CURIAM ORDERS

CR03-507. Benjamin C. Duke v. State of Arkansas, from Faulkner Circuit. Motion to deny appellant's request for oral argument. Motion denied. Oral argument set for October 9, 2003. Five minutes granted to each side for oral argument on motion to dismiss appeal; counsel for appellant and appellee to be present to argue motion. Thornton, J., not participating.

CR03-670. Carl Franklin Cook v. State of Arkansas, from Pope Circuit. Petition for writ of certiorari to complete the record. Remanded to trial court to settle the record; 30 days. Thornton, J., not participating.

CA03-594. Warren E. Dupwe v. First State Bank et al., from Crittenden Circuit. Appellant's motion to transfer to the Supreme Court is granted.

03-674. David Hugh Williams v. Arkansas Department of Correction et al., from Jefferson Circuit. Pro se motion to stay adjudication of appeal is granted. Thornton, J., not participating.

03-674. David Hugh Williams v. Arkansas Department of Correction et al., from Jefferson Circuit. Motion for extension of time to file appellee's brief is granted. Thornton, J., not participating.

03-682. Teresa Davis v. Corliss M. Williamson, from Washington Circuit. Appellant's motion to supplement the record, for writ of certiorari, and to stay briefing schedule. Motions granted; 30 days. Thornton, J., not participating.

03-1006. Treenya Maxwell v. Arkansas Department of Human Services, from Hempstead Circuit. Petition for writ of certiorari to complete the record. Granted 30 days. Thornton, J., not participating.

03-1007. Treenya Maxwell v. Arkansas Department of Human Services, from Hempstead Circuit. Petition for writ of certiorari to complete the record. Granted 30 days. Thornton, J., not participating.

03-1008. Treenya Maxwell v. Arkansas Department of Human Services, from Hempstead Circuit. Petition for writ of certiorari to complete the record. Granted 30 days. Thornton, J., not participating.

03-1015. In Re: Donald Eugene Pervis, Arkansas Bar ID #81213, from Committee on Professional Conduct. Petition for surrender of license is granted. See per curiam this date. Thornton, J., not participating. (1 PAGE PUBLISHED) [HTML, WP5.1]

02-412. William Frank Jones, Jr. v. Arkansas Department of Correction et al., from Jefferson Circuit. Rebriefing ordered. See per curiam this date. Thornton, J., not participating. (2 PAGES UNPUBLISHED) [HTML, WP5.1]

03-954. David A. Kelly v. Honorable Fred Davis, Judge, from Jefferson Circuit. Pro se petition for writ of mandamus. Petition moot. See per curiam this date. Thornton, J., not participating. (1 PAGE UNPUBLISHED) [HTML, WP5.1]

CR01-909. Anthony Lamar v. State of Arkansas, from Pulaski Circuit, Seventh Division. Pro se motion for photocopy of transcript or access to transcript at public expense. Motion denied. See per curiam this date. Thornton, J., not participating. (2 PAGES UNPUBLISHED) [HTML, WP5.1]

CR02-645. Keith Allen King v. State of Arkansas, from Sebastian Circuit, Fort Smith District. Rebriefing ordered. See per curiam this date. Thornton, J., not participating. (2 PAGES UNPUBLISHED) [HTML, WP5.1]

CR02-1016. Michael Dilworth v. State of Arkansas, from Pulaski Circuit, First Division. Pro se motion to expedite appeal. Motion denied. See per curiam this date. Thornton, J., not participating. (1 PAGE UNPUBLISHED) [HTML, WP5.1]

CR03-249. State of Arkansas v. Debbie Sherwin-Hagan, from Pulaski Circuit, Fifth Division. Pro se motion for appointment of counsel and motion for extension of time to file brief. Remanded. See per curiam this date. Thornton, J., not participating. (3 PAGES UNPUBLISHED) [HTML, WP5.1]

CR03-570. Billy Joe Campbell v. State of Arkansas, from Clark Circuit. Pro se motion for appointment of counsel. Motion denied. See per curiam this date. Arnold, C.J., and Thornton, J., not participating. (2 PAGES UNPUBLISHED) [HTML, WP5.1]

CR03-586. James Mathew Marlin v. State of Arkansas, from Madison Circuit. Pro se motion for rule on clerk to proceed with appeal of postconviction orders. Motion denied. See per curiam this date. Thornton, J., not participating. (2 PAGES UNPUBLISHED) [HTML, WP5.1]

CR03-699. Michael E. Green v. Honorable Gary Arnold, Judge, from Saline Circuit. Pro se petition for writ of mandamus. Petition moot. See per curiam this date. Thornton, J., not participating. (1 PAGE UNPUBLISHED) [HTML, WP5.1]

CR03-857. James H. Williams v. Honorable David Burnett, Judge, from Mississippi Circuit, Osceola District. Pro se motion to dismiss petition for writ of mandamus without prejudice. Motion granted. See per curiam this date. Thornton, J., not participating. (1 PAGE UNPUBLISHED) [HTML, WP5.1]

CR03-913. Rodell Avery v. Honorable Carol Crafton Anthony, Judge, from Calhoun Circuit. Petition for writ of mandamus is denied. Arnold, C.J., Thornton and Hannah, JJ., not participating. (Proceedings of September 12, 2003).

In Re: Appointment of Counsel in Criminal Cases. See per curiam this date. (1 PAGE PUBLISHED) [HTML, WP5.1]

In Re: Committee on Model Jury Instructions--Civil. See per curiam this date. Thornton, J., not participating. (1 PAGE PUBLISHED) [HTML, WP5.1]

Don R. Elliott, Jr., Esq. of Fayetteville, is reappointed to the Committee on Model Jury Instructions--Civil for a three-year term to expire on April 30, 2006. Edwin L. Lowther, Jr., Esq., of Little Rock, and Kent J. Rubens, Esq., of West Memphis are appointed to the Committee for three-year terms to expire on April 30, 2006.

The Court thanks Mr. Elliott for accepting reappointment, and Mr. Lowther and Mr. Rubens for their willingness to serve on this important Committee.

The Court expresses its gratitude to Scott Emerson of Jonesboro and William Wiggins of Fort Smith, whose terms have expired, for their dedicated service to the Committee.

MOTIONS SUBMITTED

CR80-40. Eugene I. Pitts v. State of Arkansas, from Pulaski Circuit, Fifth Division. Second motion for release of evidence for testing.

CR01-487. Charles Butler v. State of Arkansas, from Faulkner Circuit. Motion for belated appeal.

CR03-428. Danny J. Ridling v. State of Arkansas, from Pulaski Circuit, First Division. Motion to supplement the record and for brief time.

CR03-690. Meredith Bennett v. State of Arkansas, from Sebastian Circuit, Fort Smith District. Motion to withdraw as counsel.

CR03-831. John Studer v. State of Arkansas, from Hot Spring Circuit. Appellant's motion to supplement record and stay briefing.

CR03-980. Ronald O'Neal v. State of Arkansas, from Pulaski Circuit, Seventh Division. Motion to be relieved as attorney for appellant and stay briefing.

02-1349. Guy Moon v. Bill R. Holloway and John Lewis, from Desha Circuit, Arkansas City District. Appellant's motion for reconsideration.

03-989. Robert Reddin et ux. v. Arkansas Department of Human Services, from Izard Circuit. Appellee's motion to dismiss appeal.

03-995. Steve Upton v. George R. Spence, Administrator, Estate of Nolen Upton, Deceased, from Benton Probate. Appellee's motion to dismiss appeal.

03-1005. Richard A. Perkins v. Cedar Mountain Sewer Improvement District #43 of Garland County, Arkansas, from Garland Circuit. Motion for protective order and for adjustment of costs.

03-1049. In Re: Rules Governing Professional Conduct, an Original Action. Petition on proposed rules.

SUBMISSIONS

CR02-1140. Harold Stivers v. State of Arkansas, from Pulaski Circuit, Seventh Division.

CR02-1164. Jack Earl Gavin v. State of Arkansas, from Sebastian Circuit, Fort Smith District.

CR02-1202. Daniel Anthony Raymond v. State of Arkansas, from Washington Circuit.

CR02-1203. Bobby R. Green v. State of Arkansas, from Desha Circuit, Arkansas City District.

CR02-1258. James D. Smith v. State of Arkansas, from Clark Circuit.

CR02-1277. Cartrell Lewan McCoy v. State of Arkansas, from Pulaski Circuit, Seventh Division.