recognizing exception that allows "any appellant, though not a party" to appeal when it "has a pecuniary interest affected by the court's disposition of the matter below"
How later courts described this case
- recognizing exception that allows "any appellant, though not a party" to appeal when it "has a pecuniary interest affected by the court's disposition of the matter below"
Written by the judges who cited it.
The opinion
Jim Hannah, Chief Justice, concurring. I concur in the conclusion that the circuit court should be affirmed; however, I base my decision on different grounds than those set out by the majority. This appeal must be dismissed because a criminal defendant’s attorney has no right of appeal in a criminal case. Any remedy an attorney may have from an act or order entered against him or her in a criminal case must be sought by an original action in this court based on this court’s supervisory control of the circuit court.
The judgment below was one of conviction of Swindle’s client Manuel Dejesus Manica on a charge of theft by receiving. An appeal from this conviction would necessarily concern the decision of guilt or the sentence received by Manica. The right to appeal in a criminal case is conferred by Ark. R. App. P. — Crim. 5, and is limited to an appeal from a conviction for “a misdemeanor or felony. .. .” 1 See Eckl v. State, 312 Ark. 544, 545-46 , 851 S.W.2d 428 (1993). Swindle was not convicted of a misdemeanor or felony and has no right to an appeal in this criminal case.
Citing civil cases, the majority holds that because the order Swindle attempts to appeal concerns an order to pay money, Swindle has a pecuniary interest in the criminal case and must be allowed to appeal. The civil cases cited do not support the majority’s holding. In Re: $3,166,199, 337 Ark. 74 , 987 S.W.2d 663 (1999), the ordered appealed from determined the interest appellant had in certain funds without providing appellant an opportunity to be heard. In Re: Allen, 304 Ark. 222 , 800 S.W.2d 715 (1990), concerns an order to a nonparty to deposit funds into the registry of the court to pay for private hospitalization where the Arkansas State Hospital had no room for Allen. In Allen, this court cited to Arkansas State Highway Commission v. Perrin, 240 Ark. 302 , 399 S.W.2d 287 (1966), where we discussed the right to appellate review when a person is not a party to the case because a person is aggrieved by the court’s order. In Perrin, we relied on Brown v. Frenken, 87 Ark. 160 , 112 S.W. 207 (1908), where we stated, “A party aggrieved is one whose pecuniary interest is directly affected by the decree or one whose right of property may be established or divested by the decree.” Brown, 87 Ark. at 162 (quoting Wiggin v. Sweet, 47 Mass. 194 (1843)). This court in Allen also cites to Ouachita Baptist College v. Scott, 64 Ark. 349 , 42 S.W. 536 (1897), where we held that although Ouachita was not a party to the probate action, it had a right of appeal to the circuit court in this probate proceeding because Ouachita had not had not been “given a day in court,” and because there was no other remedy. Ouachita, 64 Ark. at 351 . Swindle has no right of appeal and has a remedy by way of an original action in this court.
I find no criminal case where this court has allowed an appeal by someone who has a pecuniary interest. The remedy in this case was one by an original action in this court by way of a petition for a writ of certiorari. “Certiorari lies to correct proceedings erroneous on the face of the record where there is no other adequate remedy, and 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.” Meeks v. State, 341 Ark. 620, 621 , 19 S.W.3d 25 (2000) (quoting Foreman v. State, 317 Ark. 146, 148 , 875 S.W.2d 853 (1994)). Swindle should have filed a petition for a writ of certiorari.
I am also fearful that mixing criminal and civil precedent as the majority does in this case may result in confusion where attorneys and criminal defendants begin to attempt to file notices of appeal in the same criminal case on differing issues. I would affirm, but I would do so based on Swindle’s failure to file an original action in this court under this court’s supervisory control of the circuit courts.
There is no constitutional right to appeal from a criminal proceeding. McDonald v. State, 356 Ark. 106 , 146 S.W.3d 883 (2004). The right to appeal is conferred by rule in this State. Ark. R. App. P.—Crim. 5.