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Friar v. Erwin

Supreme Court of Arkansas

November 20, 2014

ROBERT FRIAR, PETITIONER
v.
HONORABLE HAROLD S. ERWIN, JACKSON COUNTY CIRCUIT COURT, CRIMINAL DIVISION, RESPONDENT

NO. CR-2013-75. HONORABLE HAROLD S. ERWIN, JUDGE.

Teri Chambers, Arkansas Public Defender Commission, for petitioner.

Dustin McDaniel, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., for respondent.

KAREN R. BAKER, Associate Justice. HANNAH, C.J., not participating.

OPINION

Page 667

PETITION FOR WRIT OF MANDAMUS OR, IN THE ALTERNATIVE, WRIT OF CERTIORARI

KAREN R. BAKER, Associate Justice

The present case stems from one count of capital murder, two counts of attempted capital murder, seven counts of terroristic acts, and one count of possession of a firearm by certain persons filed against the petitioner, Robert Friar, in Jackson County Circuit Court, Arkansas, on April 17, 2013. The incident that gives rise to the charges occurred on February 27, 2013. If found guilty, the State intends to seek the death penalty. On March 5, 2014, pursuant to Ark. Code Ann. § 5-2-305, the State filed a motion for an order for a mental-health evaluation of Friar. On March 10, 2014, Friar responded to the motion objecting to the request asserting that Friar was not raising " mental disease or defect as a defense, nor will [Friar] claim a lack of fitness to proceed," but would seek " to bar the State from seeking the death penalty due to his mental retardation." [1] On April 17, 2014, the circuit court, the Respondent here, held a hearing on the motion and orally ruled that the circuit court would grant the State's motion and would enter orders for the examinations. On April 23, 2014, Friar filed a motion to reconsider the orders for mental-health evaluations of Friar. On April 25, 2014, the circuit court entered two separate orders, an " Order for Fitness-To-Proceed Examination of Defendant" and an " Order for Criminal Responsibility Examination of Defendant." From those orders, on April 29, 2014, Friar filed a petition for writ of mandamus and emergency petition for stay or, in the alternative, for expedited consideration with this

Page 668

court. On May 1, 2014, the circuit court responded. On May 2, 2014, we granted the stay and took the petition for writ of mandamus as a case.[2] On June 13, 2014, Friar filed a petition of writ of mandamus or in the alternative a writ of certiorari directing the circuit court to rescind its orders for fitness-to-proceed and criminal-responsibility evaluations of Friar. On July 30, 2014, the circuit court responded, and Friar replied on August 13, 2014. This court has jurisdiction pursuant to Ark. S.Ct. R. 6-1(a) (2014) as Friar requests this court to grant an extraordinary writ.

Friar presents three points in his petition for extraordinary writ: (1) the circuit court failed and refused to follow the plain mandatory language of Ark. Code Ann. § 5-2-305 (Repl. 2013) in ordering simultaneous fitness-to-proceed and criminal-responsibility examinations of Friar; (2) the circuit court failed and refused to follow the plain mandatory language of Ark. Code Ann. § 5-2-305 in ordering a fitness-to-proceed examination of Friar; and (3) the circuit court failed and refused to follow the plain mandatory language of Ark. Code Ann. § 5-2-305 in ordering a criminal-responsibility examination of Friar.

Friar has requested that this court issue a writ of mandamus directing the circuit court to rescind the orders. In State ex rel. Purcell v. Nelson, we explained the function of the writ of mandamus:

The primary function of the writ of mandamus is to require an inferior court or tribunal to act when it has improperly failed or declined to do so. It is never applied to control the discretion of a trial court or tribunal. Nor can it be used to correct an erroneous exercise of discretion.

246 Ark. 210, 215-16, 438 S.W.2d 33, 37-38 (1969) (internal citations omitted).

Alternatively, Friar has requested that this court issue a writ of certiorari directing the circuit court to rescind the orders. A writ of certiorari is also extraordinary relief. " In determining its application, we will not look beyond the face of the record to ascertain the actual merits of a controversy, or to review a circuit court's discretionary authority." S. Farm Bureau Cas. Ins. Co. v. Parsons, 2013 Ark. 322, at 5, 429 S.W.3d 215, 218. A writ of certiorari lies to correct proceedings erroneous on the face of the record when there is no other adequate remedy; it is available to the appellate court in its exercise of superintending control over a lower court that is proceeding illegally where no other mode of review has been provided. Casement v. State, 318 Ark. 225, 884 S.W.2d 593 (1994) (citing Lupo v. Lineberger, 313 Ark. 315, 316-17, 855 S.W.2d 293, 293-94 (1993)).

There are two requirements that must be satisfied in order for the court to grant a writ of certiorari. First, there can be no other adequate remedy but for the writ of certiorari. No other adequate remedy exists where the issuing court has no legal authority to support its order. Ark. Game & Fish Comm'n v. Herndon, 365 Ark. 180, 183, 226 S.W.3d 776, 779 (2006). Second, the writ of certiorari lies only where (1) it is apparent on the face of the record that ...


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