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Shaver v. State

Court of Appeals of Arkansas, Division III

April 11, 2018

RONALD CLARK SHAVER APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05CR-16-44] HONORABLE GORDON WEBB, JUDGE

          Law Offices of Craig L. Cook, by: Keith M. Kannett and Nathan E. Roop, for appellant.

          Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge

         Ronald Clark Shaver appeals the Boone County Circuit Court's denial of his motion to dismiss, which was based on res judicata and Arkansas Code Annotated sections 5-1-110 and -113 (Repl. 2013). On appeal, he contends that his prosecution in Boone County for theft of property is barred by issue and claim preclusion related to his previous theft-by-receiving conviction in the Franklin County Circuit Court. The State has filed a motion to dismiss Shaver's appeal because he did not file a notice of appeal within 30 days of the circuit court's form order denying his motion to dismiss. We grant the State's motion and dismiss Shaver's appeal.

         Shaver was charged with theft by receiving on March 10, 2016, in Franklin County, and he pled guilty after admitting as follows:

I purchased sixteen head of cattle at a discount price from an individual and whereas I took ten to the Franklin County Livestock Auction to sell and found out then they were stolen and then arrested.

         On June 30, 2016, Shaver was sentenced to 48 months' probation based on his negotiated guilty plea. Shaver's attorney told the Franklin County Circuit Court that Shaver was "contending this is the same course of conduct as those other counties so we will be making collateral estoppel arguments in those jurisdictions." Counsel was referring to Shaver's theft-of-property charge in the instant case, which was described in the February 18, 2016 information as follows:

The said defendant, on or about the 28th day of January, 2016, in Boone County, Arkansas, did unlawfully and feloniously take or exercise unauthorized control over or make an unauthorized transfer of an interest in the property of another, with the purpose of depriving the owner of the property, with the value of the property being more than $5, 000 but less than $25, 000, against the peace and dignity of the State of Arkansas, to wit: the defendant stole from Lee Roy Roberts and Sharon Starkey sixteen (16) head of cattle. Later that same day, the defendant sold ten (10) of the cattle for a total of $10, 323.59.

         After Shaver pled guilty to theft by receiving in the Franklin County case, he filed a motion to dismiss in the Boone County Circuit Court, arguing that the affirmative defenses of Arkansas Code Annotated sections 5-1-113 (issue preclusion) and 5-1-110 (claim preclusion), and the common-law doctrine of res judicata, which includes both issue and claim preclusion, warranted dismissal of the charge in Boone County. The brief in support of Shaver's dismissal motion explains res judicata and the two facets of it-issue and claim preclusion. Further, Shaver argued that "collateral estoppel" or "issue preclusion" is codified in section 5-1-113. He also argued that the doctrine of claim preclusion warranted dismissal, and the codified version thereof is set forth in section 5-1-110.

         The circuit court denied Shaver's motion, ruling from the bench on January 20, 2017, and an order was filed January 23, 2017, with a handwritten portion stating, "Motion to Dismiss is denied." The order also set a hearing for February 10, 2017, and on that date, the following colloquy occurred:

The State: Judge, we had a discussion over lunch and I believe that we are going to get a copy of the Court's ruling from two weeks ago and reduce it to writing. And then I- once that is done-
The Court: You're getting a ...

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