Opinion highlights for the week of August 30, 2026

 

The Arkansas Court of Appeals' September 2, 2026, syllabus notes twelve decisions.  The Arkansas Supreme Court did not issue a syllabus this morning.  Two of those Court of Appeals opinions are of interest here.

Henderson v. State, 2026 Ark. App. 378, involves a challenge to certain fees and costs imposed in a probation revocation proceeding.  The State argued that the Court of Appeals lacked jurisdiction, since Henderson's notice of appeal did not list prior orders imposing some of those fees and costs.

The Court of Appeals rejected the State's argument for two reasons.  First, the sentencing order on appeal incorporated those prior orders when it ordered Henderson to "pay all previously assessed fines, costs, restitution, etc. upon release."  Second, Henderson's argument invoked the issue of an illegal sentence, which can be raised as a matter of subject matter jurisdiction for the first time on appeal.  Thus, the Court of Appeals had jurisdiction to reach the merits.

The appellant challenged the propriety of a sentencing order's forfeiture provision in Roberts v. State, 2026 Ark. App. 381.  On appeal, the State conceded that the forfeiture provision should be removed upon remand.  The Court of Appeals ordered that relief, but otherwise affirmed Roberts' conviction.

Roberts argued that he could challenge the forfeiture provision on appeal without having filed a post-trial motion to preserve the issue, since "the forfeiture provision appeared without notice for the first time in the sentencing order." Id. at 3.  The Court of Appeals agreed.

When an appellant has no opportunity to object to a sentencing error in the circuit court, the absence of an objection does not preclude appellate review. See, e.g., Eberlein v. State, 315 Ark. 591, 593–94, 869 S.W.2d 12, 13–14 (1994). Here, the circuit court did not order the forfeiture when it pronounced the sentence; the forfeiture provision appeared for the first time in the sentencing order. Accordingly, Roberts had no opportunity to object before the sentencing order was entered.

Roberts, 2026 Ark. App. 381, at 3-4.  The court also noted that Robert's challenge raised an illegal sentence issue which could be reviewed for the first time on appeal.  Thus, his claim was properly before the appellate court.

Interestingly, the Court of Appeals did not cite Wicks.  But the second exception to the plain error rule set forth in that case involves exactly this rule: even if not preserved below, an issue may be raised on appeal "when the error is made by the trial judge himself at a time when defense counsel has no knowledge of the error and hence no opportunity to object." Wicks v. State, 270 Ark. 781, 786, 606 S.W.3d 366, 369 (1980).  The language in Roberts could be broad enough to support other arguments about sentencing order errors - if the context is similar - made for the first time on appeal.  Citing the second Wicks exception wouldn't hurt.

Thanks for reading.  Enjoy your Labor Day weekend.

Opinion highlights for the week of August 23, 2026

 

Last week, the Arkansas Court of Appeals handed down seven opinions.  The Arkansas Supreme Court did not issue a syllabus.  Three of those Court of Appeals decisions are noted here.

The Court of Appeals remanded Johnson v. State, 2026 Ark. App. 369, to settle and supplement the record.  The peremptory strikes at trial all occurred off the record.  But to review the submitted no-merits brief for Anders compliance, the appellate court "must be provided with the entire record of the circuit court proceedings, including a transcript of the jury selection process." Id. at 2.  Without a transcript, the Court of Appeals could not be assured that there were no objections or adverse rulings during this portion of the trial.

The Court of Appeals acknowledged that a verbatim record is ideal, but not required in every instance - the court would evaluate whether the supplemental record enabled full and complete appellate review.  "Accordingly, in the absence of a verbatim record of the peremptory strikes, the record should be reconstructed." Id.

Hughes v. State, 2026 Ark. App. 371, involved a claim that a juror should have been removed.  At trial, Hughes' attorney did not object when given the opportunity by the trial court.  On appeal, Hughes argued that the this issue could be addressed under the third Wicks exception to the rule requiring a contemporaneous objection at trial.

The third Wicks exception allows consideration of an unpreserved argument when the trial court had a duty to intervene, even without a party's objection, to address flagrant and highly prejudicial errors.  The Court of Appeals noted that "Arkansas appellate courts have repeatedly rejected attempts to invoke Wicks in cases involving alleged juror bias or misconduct when no contemporaneous objection was made." Hughes, 2026 Ark. App. 371, at 3.  Because his argument was not preserved at trial and Wicks did not apply, the Court of Appeals did not consider Hughes' arguments about the juror.

Finally, Floyd v. Bowlin-Lemon, 2026 Ark. App. 373, arose out of a boundary dispute.  At trial, appellants offered to rebuild a certain fence; after confirming that offer, the trial court ordered that the fence be rebuilt.  Appellants promptly challenged that on appeal.  The Court of Appeals found that appellants waived this argument at trial, so that it was not preserved for review: "It is well settled that a party may not complain on appeal of an action that he induced, consented to, or acquiesced in below." Id. at 9.

Enjoy your week - thank you for reading.

Settlement immediately prior to oral argument - one panel's reaction

 

You are in the courtroom to present oral argument.  Thirty minutes prior to the start of the court's session, you learn that the parties have settled their dispute.  What would you do?  How would you address this development to the appellate court?

That happened this morning before a panel of the Arkansas Court of Appeals.  The case is Meta Platforms, Inc., et al. v. State of Arkansas ex rel. Tim Griffin, Attorney General, CV-24-592.

When the case was called, Meta's attorney informed the panel that thirty minutes prior to argument he was notified that the parties had settled.  He offered to continue with or forego argument, as the court wished.  The panel asked the State for its reaction, but that attorney did not come to the podium and I could not make out her response.

The panel's response was, essentially: "It's your case.  How would you like to proceed?"  Meta's attorney opted to present argument.  Interestingly, the panel did not ask a single question of either attorney.

I've not seen this happen before, although I'm sure this was not the first time a case settled immediately prior to argument or submission for decision.  It might be interesting to see how this case unfolds.

Have a good day.