Opinion
Opinion Delivered July 1, 2004
The Supreme Court Committee on Criminal Practice has submitted three proposals to the court as set out in detail below. We express our gratitude to the members of the Criminal Practice Committee for their work. These proposals are being published for comment, and the comment period shall end on September 30, 2004.
Comments should be submitted in writing to: Clerk of the Arkansas Supreme Court, Attention: Criminal Practice Committee, Justice Building, 625 Marshall Street, Little Rock, AR 72201.
1. Proposed Amendment to Rule of Appellate Procedure — Criminal 1(c).
RAP-Crim 1(c) provides that no appeal shall be taken after the death of a defendant, and any appeal taken during a defendant's life shall abate if the defendant dies. The Committee was requested by an attorney to amend this rule to address collateral consequences to the estate and heirs of a defendant that may result if an appeal cannot be taken after the death of a defendant. The Committee has recommended to the court the following amendment to RAP-Crim 1(c):
Rule 1. Right of appeal.
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(c) Death of Defendant.Reporter's Notes to 2004 AmendmentsNo appeal shall be taken after defendant's death, and upon his death an appeal taken during his life shall abate and shall not be revived.Upon the death of a defendant, the appeal shall not abate. The appeal shall continue on the relation of a representative party as provided in Ark. R. Civ. P. 25(a).
Subsection (c) was amended in 2004 to permit an appeal to continue following the death of a defendant.
2. Proposed Amendment to Arkansas Rule of Criminal Procedure 11.1.
The Committee's proposal to amend Ark. R. Crim. P. 11.1 is explained in the Reporter's Notes and is set out as follows:
Rule 11.1 Authority to search and seize pursuant to consent.
(a) An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search.
(b) The state has the burden of proving that consent to a search was freely and voluntarily given and that there was no actual or implied duress or coercion.
(c) A search of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent. For purposes of this subsection, a "dwelling" means a building or other structure where any person lives or which is customarily used for overnight accommodation of persons. Each unit of a structure divided into separately occupied units is itself a dwelling.Reporter's Notes to 2004 Amendments
The 2004 amendments added subsections (b) and (c). Subsection (b) codifies the burden of proof imposed on the state beginning with such cases as Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980) and Rodriquez v. State, 262 Ark. 659, 559 S.W.2d 925 (1978). Because of uncertainty as to meaning, the reference to "clear and positive" evidence of voluntary consent found in many decisions was not included in the subsection (b) formulation. Subsection (c) incorporates the holding of State v. Brown, ___ Ark. ___, ___ S.W.3d ___ (2004), which requires that a home dweller be advised of his or her right to refuse consent to a search of the dwelling.
3. Proposed "Order for Issuance of Arrest Warrant and Summons/Order for Surety to Appear" Implementing Act 752 of 2003 Arkansas General Assembly.
Act 752 of the 2003 General Assembly substantially revised the procedures for forfeiture of bail bonds. The Committee has recommended a uniform order to be used by the courts in implementing the forfeiture procedures of Act 752 which is set out below.
[Order for Issuance of Arrest Warrant and Summons/Order for Surety to Appear] IN THE CIRCUIT COURT OF _______________ COUNTY, ARKANSAS __________________ DIVISION STATE OF ARKANSAS PLAINTIFF VS. NO. CR ________________________ DEFENDANT ORDER FOR ISSUANCE OF ARREST WARRANT AND SUMMONS/ORDER FOR SURETY TO APPEAROn this ____ day of ____, 20__, comes on for consideration the oral motion of the State of Arkansas, by its Prosecuting Attorney for this County, requesting the forfeiture of the defendant's bail bond and issuance of an alias bench warrant for the immediate arrest of the defendant.
From the statements of the Prosecuting Attorney, a review of the records applicable to this case, and the applicable law, the Court finds that:
(1) The defendant had been directed to appear before the Court on this date at ____ o'clock ____. m. but failed to respond or to appear before the Court as directed.
(2) The defendant has been released from custody, having caused a bail bond to be executed in favor of ____________ County, Arkansas in the penal sum of $_________, with said defendant as principal and ______________________ as surety thereon, which bond guaranteed the defendant's appearance on said date and on all dates as directed by the Court in these proceedings.
(3) No reasonable excuse has been advanced to justify the defendant's failure to appear as directed.
THEREFORE, it is herein considered, ordered and adjudged that the Circuit Clerk be, and hereby is directed to promptly cause an alias bench warrant to be issued for the immediate arrest of the defendant, and to cause the warrant to be delivered to the Sheriff of this Court for service upon the defendant. Upon the apprehension or surrender of the defendant, the initial appearance (bail) bond shall be $_____________________; and
IT IS FURTHER ORDERED that the Circuit Clerk be, and hereby is directed to promptly notify the surety (one or more) that the defendant should be surrendered to the Sheriff of this Court as required by the terms of the bail bond and notify the surety (one or more) to appear before the Circuit Court on the ____ day of ____, 20__, at _____ o'clock ____ m. to show cause why the full amount specified in the bail bond or the money, if any, deposited in lieu of bail should not be forfeited to ____ County.
If the surety (one or more) does not appear at the hearing scheduled by the Court, each surety on the bond shall be liable, jointly and severally, for payment of the amount forfeited. If the surety desires to be represented by an attorney, such attorney should appear at the hearing.
Entry of the Order of Forfeiture by the Court shall constitute a personal judgment against each surety on the bond, for which execution and other lawful process may issue.
The officer who is responsible for taking the bail bond is also ordered to appear before the Court on the date and at the time noted above, unless (1) the surety is a bail bondsman, or (2) the officer accepted cash in the amount of bail.
IT IS SO ORDERED on this ____ day of ____, 20__.
_______________________, CIRCUIT JUDGE
_______________________, CIRCUIT CLERK
BY:_______________________________________
Deputy Circuit Clerk