French v. State

Cite as 2017 Ark. App. 136

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-16-846

Opinion Delivered: March 8, 2017
TRACY FRENCH
APPELLANT
APPEAL FROM THE HOT SPRING
V. COUNTY CIRCUIT COURT
[NO. 30CV-16-148]
STATE OF ARKANSAS
APPELLEE HONORABLE EDDY ROGER
EASLEY, JUDGE

DISMISSED

BART F. VIRDEN, Judge

The Hot Spring County Circuit Court entered an order denying appellant Tracy

French’s pro se “Writ for Sterilization” and finding that his action failed to state a claim

upon which relief could be granted and thus constituted a strike pursuant to Ark. Code

Ann. § 16-68-607.1 We dismiss for lack of jurisdiction.

1
Section 16-68-607 provides,

In no event shall an incarcerated person bring a civil action or appeal a
judgment in a civil action or proceeding under the Arkansas indigency statutes
if the incarcerated person has on three (3) or more prior occasions, while
incarcerated or detained in any facility, brought an action that is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless
the incarcerated person is under imminent danger of serious physical injury.
Cite as 2017 Ark. App. 136

I. Procedural History

On June 24, 2016, French filed a “Writ for Sterilization” with an attached affidavit

stating that he was “requesting for [the Hot Spring County Circuit Court] to surgically

sterilize me for the crime of rape that I committed. . . . I personally feel this would be the

best remedy for my wrong doing. . . . In exchange for sterilization I respectfully request for

release upon completion of said medical procedure.”

The following response was filed on June 29, 2016: “The State could not care less

whether the Petitioner is castrated or sterilized as long as it is done by private physicians and

hospitals at no expense to the State or Federal government.” The State objected to the trial

court’s having anything to do with the procedure and to any early release of the petitioner.

In reply, French asserted that voluntary sterilization is a method for controlling a sex

offender’s irresistible urges to reoffend and allows him to be released without endangering

the public. He also stated that

[t]his circuit Court has jurisdiction to grant castration of a convicted sex offender for
a reduction of sentence for a suspended imposition of sentence, suspended sentence
or probation. Castration has been used as a plea agreement for a sentence reduction
in this state before and those same tenets should be applied to an incarcerated
convicted sex offender pursuant to Ark. Code Ann. § 20-49-101 et seq. and the
petitioner is requesting a Hearing for Sterilization pursuant to Ark. Code Ann. § 20-
49-204.

French attached as exhibits proposed legislation for the 2017 session of the General

Assembly, drafted by him, entitled “Sterilization by Orchiectomy for Certain Sex

Offenders” and “Study Rate of Recidivism of Sterilization by Orchiectomy.”

On August 18, 2016, the trial court denied French’s request for relief. French had

filed a notice of appeal on August 9, 2016.

2
Cite as 2017 Ark. App. 136

On appeal to this court, French does not contend that the trial court erred in denying

his request nor does he challenge the trial court’s issuance of a strike for filing the civil

action. French’s only discernible argument is as follows:

Petitioner seeks relief from his (30) thirty year sentence, through castration for release
having served (10) ten years, with remainder of sentence suspended, reinstated at
(100%) one hundred percent, for any new in state felony conviction, per appeal brief
as facts set out. So petitioner may return to Iowa.

The authority French relies on are statutes under the chapter entitled “Sterilization

of Mental Incompetents,” yet he does not allege that he is mentally incompetent.2 He cites

only one Arkansas case, American Civil Liberties Union of Arkansas v. State, 339 Ark. 314, 5

S.W.3d 418 (1999), and it is readily distinguishable.3 Beyond simply asserting that the trial

court has jurisdiction to grant the relief, French does not explain how the trial court could

have modified his sentence, which was put into execution ten years ago.4 We decline to

reach the merits of French’s argument because there is a more fundamental problem in that

this court lacks jurisdiction to hear his appeal.

2
See Smith v. May, 2013 Ark. 248 (“We have repeatedly declined to address
arguments, even constitutional arguments, that are not supported by citation to legal
authority or convincing argument, and we will not address an appellant’s arguments when
it is not apparent without further research that the argument is well taken.”).
3
Id. (affirming without reaching the merits of the trial court’s decision that the ACLU
had no standing to intervene in case where defendant sought castration during plea
negotiations).
4
See Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999) (Once a valid sentence
has been put into execution, the trial court is without jurisdiction to modify, amend, or
revise it.).

3
Cite as 2017 Ark. App. 136

II. Jurisdiction

Although neither party raised a jurisdictional issue based on the timeliness of the

appeal, it is our duty to determine whether this court has jurisdiction. Perez v. Furrow, 95

Ark. App. 333, 237 S.W.3d 109 (2006). Generally, a notice of appeal shall be filed within

thirty days from the entry of the judgment, decree, or order from which an appeal is taken.

Ark. R. App. P.–Civ. 4(a). A notice of appeal filed after the circuit court announces a decision

but before the entry of the judgment, decree, or order shall be treated as filed on the day

after the judgment, decree, or order is entered. Ark. R. App. P.–Civ. 4(a). (Emphasis added.)

French did not file a notice of appeal within thirty days from August 18, 2016, when

the order denying his request for relief was entered. Although French designated the entire

record, including all proceedings, there is no hearing transcript in the record. Also, the trial

court’s order indicates that its decision was rendered “upon review of all the pleadings,”

which suggests that no hearing was held. Without a record to demonstrate when, or if, the

trial court announced its decision, we cannot treat French’s notice of appeal as having been

filed the day after the order was entered. We therefore dismiss the appeal for lack of

jurisdiction. See, e.g., Jewell v. Moser, 2012 Ark. 267; Hernandez v. Hernandez, 371 Ark. 323,

265 S.W.3d 746 (2007).

Dismissed.

ABRAMSON and GLADWIN, JJ., agree.

Tracy French, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

4