Opinion highlights for the week of August 31, 2025

 

The Arkansas Court of Appeals handed down eight decisions on Wednesday.  The Arkansas Supreme Court's docket on Thursday noted the disposition of various petitions and motions, and noted cases and motions submitted - but no decisions on the merits.

One of those Court of Appeals decisions is worth noting here, Wheeler v. State, 2025 Ark. App. 407.  In challenging his conviction, Wheeler made an argument "under double-jeopardy principles" that he could not be convicted on two separate charges for the same incident.  Thus, he argued, the evidence was insufficient on the second of the two convictions, and it should be reversed and dismissed.

The Court of Appeals rejected this argument as "not preserved for review because it was not timely raised below." Id. at 11.  "[A] defendant cannot object to a double-jeopardy violation on the basis of overlapping charges in the same prosecution until he has actually been convicted of multiple offenses, and if he fails to object after being convicted, his double-jeopardy argument is waived." Id. at 12.  Wheeler did not make this argument after his convictions, therefore, it was waived.

Thank you for reading.

Summer Break begins winding down - and a proposed amendment to the Federal Rules of Appellate Procedure

 

The Arkansas Court of Appeals issued a nine-page docket on Wednesday, April 20, 2025.  One page consists of cases submitted to the court; the other eight pages list motions submitted.  The Arkansas Supreme Court did not issue a docket today.

Readers may be interested in a proposed change to Fed. R. App. P. 15, which addresses how to obtain review of agency orders.  At the risk of generalizing, it appears that the change will preserve a premature petition to review an agency order.  Targeted are those petitions filed after the entry of the agency order, but prior to agency disposal of a petition for rehearing, reconsideration, or similar filing.  These premature petitions become effective when the agency disposes of the last petition for rehearing or similar filing.

Note that the premature petition would only become effective to permit review of the original agency order.  If a party wants to challenge the disposition of the request for rehearing, reconsideration, or similar filing, a new or amended petition for review would need to be filed as to those matters.

This proposal is open for comments until February 16, 2026.  If you would like to read the proposed amendment, accompanying commentary, and instructions on how to comment, you can start here: Proposed Amendments Published for Public Comment

Thank you for reading.

Summer Break 2025 - part three

 

While we're waiting on our appellate courts to return - and on me to finish reviewing the Court of Appeals decisions from June 4, 2025 - the most recent issue of the Journal of Appellate Practice and Process deserves notice.

Some of you may already be aware of this journal, which focuses on appellate law topics.  The journal's website notes this about its history:

The Journal was founded at the University of Arkansas at Little Rock’s William H. Bowen School of Law in 1999, and moved to the University of Arizona James E. Rogers College of Law in June 2020. It is edited in partnership with the National Institute for Trial Advocacy.

How - and why - Bowen allowed this journal to get away will always be a mystery to me.

You can find the most recent issue of the journal here:  https://journals.librarypublishing.arizona.edu/appellate/issue/823/info/

I am particularly interested in Lisa Sarnoff Gochman's "At the Library of the Appellate Gods."  Gochman recently authored a delightful book, "At the Altar of the Appellate Gods: Arguing Before the U.S. Supreme Court," a recounting of her argument for the losing side in Apprendi v. New Jersey, 530 U.S. 466 (2000).  She handled the case from New Jersey's appellate courts all the way to the top - the book is highly recommended.  Her article describes a more recent trip to the Library of Congress to review Justice John Paul Stevens' papers about Apprendi.  Again, it looks very interesting.

Thanks for reading - enjoy your summer.