Opinion highlights for the week of November 30, 2025

The Arkansas Supreme Court handed down three decisions on December 4, 2025; this followed the Arkansas Court of Appeals' release of eighteen decisions the previous day.  But this week, some of the more interesting reading can be found in concurrences and a dissent.

Recall Evans v. Harrison, 2025 Ark. 164, discussed here in a post dated November 7, 2025.  Briefly, the dissent in Evans claimed that the majority raised an issue for the first time on appeal, and questioned whether criminal defendants would be allowed the same opportunity.

This issue was revisited in a concurrence and a dissent issued upon denial of a petition for review in Wheeler v. State.  The dissent - published at 2025 Ark. 197 - would have granted the petition for review to allow Wheeler "to raise his double jeopardy claim on appeal.  After the majority's decision in Evans v. Harrison... where it sua sponte raised a constitutional issue, how can we not allow a defendant to raise a constitutional issue on appeal?" Id. at 1.  The dissent read Evans "to contradict or call into question our long-held precedent that we do not consider arguments (constitutional or otherwise) that were not preserved and raised at the trial court." Id. at 1 n.1.

The concurrence - published at 2025 Ark. 196 - was authored by the justice who wrote Evans.  The concurrence denied that Evans "upend[ed] this court's precedent concerning a defendant's obligations in a criminal prosecution and appeal." Id. at 1.  Evans was distinguished as involving "(1) full adversarial development, (2) repeated opportunities to brief the controlling constitutional issue, and (3) a structural problem implicating the validity of every local ballot initiative in Arkansas." Id. at 2.  To the concurrence, that situation is distinguishable from "an individualized double-jeopardy defense arising from a single prosecution." Id.

No other justice joined these two opinions.  If you haven't read Evans yet, I highly recommend it, and suggest that you follow up with these two opinions.

Turning to the Court of Appeals, a concurrence to a decision to grant a rule on the clerk opened with this sentence: "Dear Criminal Defense Lawyers: Please Do Better."  This concurrence is published at Whitt v. State, 2025 Ark. App. 588.  The author notes a "lack of  care shown to jurisdictional details, like the rather mundane but critical task of filing a record on appeal on time" and a concern with "the failure to file a timely notice of appeal when directed to do so." Id. at 1.  The concurrence closes with this warning: "Referrals to the appropriate authority will increase if this trend is not arrested, and quickly so.  You are on notice." Id.

Thank you for reading.

Opinion highlights for the week of November 16, 2025

The Arkansas Court of Appeals announced fifteen decisions on November 19, 2025.  The Arkansas Supreme Court handed down four opinions the next day.  Three cases are noted here.

In Tate v. State, 2025 Ark. 186, Tate argued on appeal that the cumulative effect of alleged errors in admitting evidence affected his trial.  The Supreme Court found that this argument was not preserved for review.

[A]n appellant asserting a cumulative-error argument must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the trial court and a ruling obtained.  The record reflects that Tate did not make a cumulative-error objection at trial and did not obtain a ruling.  We will therefore not consider the argument.

Id. at 14.  This is useful guidance on preserving a cumulative-error argument for appeal, although the opinion does not specify when the cumulative-error objection itself must be made at trial.

The Court of Appeals remanded the case to settle and supplement the record in Criswell v. State, 2025 Ark. App. 563.  The court was concerned about the legality of Criswell's sentence in this revocation case.  There were two counts against Criswell; the original sentencing order and the revocation sentencing order both reflected that a habitual-offender enhancement applied to one count, but not the other.

The problem was that, without the sentencing enhancement applied to the other count, Criswell's sentences - both originally and upon revocation, as to this count - were too long, and thus illegal. 

 

While the failure to check the habitual-offender box for Criswell’s possession-of-a-controlled-substance charge on both sentencing orders may well have been a mere clerical error, we do not make that decision ourselves. In Jacobs v. State, 2023 Ark. App. 21, we were presented with similar questions regarding the factual bases for the circuit court’s imposition of an extended term of imprisonment. In that case, we remanded the matter to the circuit court with instructions for it to settle the question as to what, if any, clerical errors existed as to the sentencing order and to correct the sentencing order nunc pro tunc if clerical errors were found to exist.

Criswell, 2025 Ark. App. 563, at 4.  The case was remanded to settle the record by ensuring proper application of the sentencing enhancement and to correct any errors.

Finally, in Minor Child v. State, 2025 Ark. App. 552, the Court of Appeals considered whether the notice of appeal properly designated the order appealed.  The notice stated that MC appealed the October 25 "deemed denial" of a post-trial motion; in fact, an order had been entered on October 11 denying that motion.

The court noted a Supreme Court holding: "The supreme court has held that when it is clear what order the appellant is appealing from given the issues raised in the notice of appeal, an inaccurate date listed for the order appealed from in the notice of appeal is merely scrivener's error." Id. at 4.  After referencing a couple of its own cases, the court concluded:

 

 Here, appellant’s amended notice of appeal did not specifically identify the October 11 order denying his motion, but it was timely as to that order and stated that he was appealing the denial of his motion. We hold that the notice of appeal is effective to appeal the denial of his motion.

Id. at 4.

Thank you for reading.