{
  "id": 1453625,
  "name": "Robert Dale ROWLINS v. STATE of Arkansas",
  "name_abbreviation": "Rowlins v. State",
  "decision_date": "1995-01-23",
  "docket_number": "CR 94-1036",
  "first_page": "323",
  "last_page": "327",
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      "reporter": "Ark.",
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      "cite": "Ark. Code Ann. \u00a7 16-13-403",
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      "reporter": "Ark. Code Ann.",
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  "last_updated": "2023-07-14T15:29:57.133828+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Robert Dale ROWLINS v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Tom Glaze, Justice.\nAppellant Robert Rowlins appealed his municipal court conviction for DWI to the Washington County Circuit Court where a bench trial was held by Judge William Storey. At the circuit court trial, the state asked Officer Gunter Lindermeyer questions, concerning the officer having found Rowlins in his car parked with its motor running. Lindermeyer said that he requested Rowlins to get out of his car, and after observing Rowlins and testing him, Lindermeyer concluded Rowlins was under the influence of THC in combination with alcohol. Rowlins\u2019s counsel cross-examined the officer\u2019s testimony concerning THC. Then Judge Storey asked his own questions, requesting Lindermeyer to explain what THC was and what the significance was of the tests mentioned by Lindermeyer. Rowlins\u2019s counsel objected to Judge Storey\u2019s questions and this colloquy occurred:\nDefense Counsel: Your Honor, I\u2019m going to object. I think at this point, Judge, you\u2019re asking the questions that the prosecutor should have asked and I believe that you need to decide this case on the facts as presented to the case (sic). You\u2019re the trier of facts today. If we had a jury here instead, that jury would not be able to sit here and question that officer in the manner in which you\u2019re doing and I object to the Court doing that.\nJudge Storey: (Brief pause.) That\u2019s a good point, Mr. Norwood. I\u2019ll tell you what I\u2019m going to do, I\u2019m going to declare a mistrial in this case and I\u2019m going to assign it to another court and recuse and it\u2019ll be for another judge.\nDefense Counsel: Thank you, Your Honor. I appreciate that.\nJudge Storey: Alright, Court will stand in recess.\nAbout two weeks after Judge Storey recused, a new hearing commenced with Judge David Burnett presiding. Judge Burnett, circuit judge for the second judicial circuit, was on exchange to Washington County Circuit Court pursuant to Ark. Code Ann. \u00a7 16-13-403 (Repl. 1994) and Ark. Const, art. 7, \u00a7 22. Before the hearing, defense counsel asked Judge Burnett if the exchange agreement between Storey and Burnett had been reduced to writing, and Judge Burnett responded in the affirmative. Rowlins\u2019s counsel asked that the agreement be placed in the case file and Judge Burnett agreed to make it a part of the record to which counsel said, \u201cThank you, your honor.\u201d The agreement was, in fact, filed the day of the hearing. At the same hearing, defense counsel interposed an objection, claiming double jeopardy. In this respect, Rowlins argued that, without notice, Judge Storey had declared a mistrial and as a consequence, double jeopardy precluded a retrial. Judge Burnett denied Rowlins\u2019s double jeopardy claim and Rowlins brings this appeal from Judge Burnett\u2019s final order on that issue. See Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992).\nIn this appeal, Rowlins resumes his argument made below that, when Judge Storey declared a mistrial, double jeopardy precluded any retrial unless the mistrial was for a manifest necessity. Rowlins argues no manifest necessity existed and, in fact, states that when Judge Storey declared a mistrial, there was nothing in the record indicating that Judge Storey was favoring one side or the other by his questions.\nUnder Ark. Code Ann. \u00a7 5-1-112(3) (Repl. 1993), a retrial of a defendant is not permitted if a former prosecution was terminated without the express or implied consent of the defendant unless the termination was justified by overruling necessity. Here, as set out above, Rowlins greeted Judge Storey\u2019s mistrial decision and ruling to recuse by saying, \u201cThank you, your honor. I appreciate that.\u201d Surely, no more is required to show Rowlins\u2019s agreement with Judge Storey\u2019s decisions. While Rowlins now argues he believes Judge Storey\u2019s questions were not meant to favor the state, Rowlins, when he interposed his objection, admonished Judge Storey that he was asking questions the prosecutor should have asked. Rowlins reminded Storey that as judge, he was the trier of the facts and should decide the case on the facts presented. Rowlins claims he was \u201ccaught off guard\u201d by Judge Storey\u2019s mistrial ruling, but our review of the record reflects Rowlins had ample opportunity to apprise Judge Storey that Rowlins was not seeking or agreeing to such relief. Instead, defense counsel\u2019s express response indicated he agreed with Judge Storey.\nIn his second argument, Rowlins contends the exchange agreement entered into by Judges Storey and Burnett pursuant to \u00a7 16-13-403 was unlawful because Ark. Code Ann. \u00a7 16-13-1203 (Repl. 1994) provides that voters of the fourth judicial district (which includes Washington County Circuit Court) must elect the judges who preside over all cases arising within the district. In sum, Rowlins asserts these two statutes are conflicting and \u00a7 16-13-1203 should control. This argument is meritless. Ark. Const, art. 7, \u00a7 22 clearly provides that the circuit judges may temporarily exchange circuits or hold court for each other under such regulations as may be prescribed by law. Section 16-13-403 merely implements that constitutional mandate allowing for temporary exchanges between districts or circuits. Before leaving this point, we mention Rowlins actually requests that this court issue a writ of mandamus requiring compliance with \u00a7 16-13-1203. However, because \u00a7 16-13-403 is applicable, not \u00a7 16-13-1203, that request is denied.\nFinally, Rowlins claims the exchange agreement between the two judges was void because it was open-ended, contained no limitation as to cases or time, and the agreement was not timely filed. None of these points were raised below, and this court has held that a presumption is indulged that an exchange agreement by the regular judge and presiding judge is regular and in compliance with the statutes, and cannot be questioned for the first time on appeal. Boyd v. Matthews, 239 Ark. 112, 388 S.W.2d 102 (1965).\nWe have also held that, while \u00a7 16-13-403 mandates that the judges, agreeing to exchange a case, sign the agreement and enter it on the record, such non-jurisdictional error may be waived. Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993). That is the situation in the case here.\nFor the reasons discussed above, we affirm.",
        "type": "majority",
        "author": "Tom Glaze, Justice."
      }
    ],
    "attorneys": [
      "Doug Norwood, for appellant.",
      "Winston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Robert Dale ROWLINS v. STATE of Arkansas\nCR 94-1036\n891 S.W.2d 56\nSupreme Court of Arkansas\nOpinion delivered January 23, 1995\nDoug Norwood, for appellant.\nWinston Bryant, Att\u2019y Gen., by: J. Brent Standridge, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0323-01",
  "first_page_order": 357,
  "last_page_order": 361
}