Defense wins 3 at Court of Appeals!

28 10 2011

For the first time during the new sitting of the Arkansas Court of Appeals a decision came down for the defense.  In fact, three wins were had by the defense.

In Everetts v. State, the supervisor of children services had reported that there were no findings that the child was abused.  The judge ruled that the finding was not allowed in the criminal case because it essentially usurped the jury’s function.  The supervisor disregarded the judge and stated that there was no finding of abuse.  The State moved for a mistrial and the judge granted it over defense counsel’s objection.  After the trial, defense counsel moved to prevent a retry on the grounds of double jeopardy.  The circuit court denied defense counsel’s motion.  On appeal, the standard is whether the mistrial was of overruling necessity.  Finding that an admonishment would have sufficed, the Court of Appeals reversed and dismissed the case.

Stribling v. State did not result in a complete reversal; however, it does teach one thing – courts cannot order conditions while in prison.  The judge ordered a mandatory drug program during incarceration, which is an illegal sentence.  Although a judge may order conditions post-release, he may not order conditions while in prison.

In an extremely divided court (5-4), the majority found insufficient evidence to support the conviction of Robert Thomas for theft by receiving.  The only evidence introduced at trial to support that the conviction was possession of the stolen firearm and previous felony convictions.  The decision rested on whether a presumption of knowledge that the item was stolen applied.  There is a presumption of knowledge that the item was stolen if the item was recently stolen.  The question became whether 8 months was recent.  The majority declared that it was not and Thomas’ conviction was reversed and dismissed.




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