Ainsworth v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Betty C. Dickey
• Citation: Ainsworth v. State, 367 Ark. 353, 240 S.W.3d 105 (Ark. 2006)
• Decision Date: 28 September 2006
• Docket Number: No. CR 06-299.,CR 06-299.
• Parties: Dorsey AINSWORTH, Appellant, v. STATE of Arkansas, Appellees.

240 S.W.3d 105

367 Ark. 353

Dorsey AINSWORTH, Appellant, v. STATE of Arkansas, Appellees.

No. CR 06-299.

Supreme Court of Arkansas.

September 28, 2006.

Wm. C. Plouffe, Jr., Little Rock, AR, for appellant.

Mike Beebe, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., Little Rock, AR, for appellee.

BETTY C. DICKEY, Justice.

The Appellant, Dorsey Ainsworth, signed a plea agreement on June 26, 2001, admitting to charges of conspiracy to deliver a controlled substance and possession of drug paraphernalia. The Union County Circuit Court accepted the plea agreement, sentenced him to five years probation for each count, fined him $2,000 on the conspiracy count, imposed court costs of $150, and sentenced him to eighty hours of community service. Apparently, no judgment and disposition order was entered, and the only records reflecting the oral pronouncement of the sentence were the plea agreement, a criminal docket sheet, and a circuit court time-pay sheet. Ainsworth met with his probation officer during 2001. On September 16, 2002, a petition to revoke probation was filed against Ainsworth, and he was eventually arrested and detained for three weeks in July 2004. While he made some payments towards his fines, on August 10, 2004, Ainsworth filed combined motions to dismiss the petition to revoke probation and to dismiss all criminal proceedings. On July 19, 2005, he filed an amended motion on the same bases. A hearing on the motions was held on November 22, 2005. On December 6, 2005, the trial judge signed an order denying the Appellant's motions to dismiss and denying the petition to revoke, and then announced that a judgment and disposition order would be entered nunc pro tunc. On December 8, 2005, the nunc pro tunc order referencing the Appellant's previous guilty pleas and subsequent sentences was entered in the trial court. However, the order reduced Ainsworth's fines from $2,000 to $1,000. The Appellant filed a timely notice of appeal, appealing the denial of his motions to dismiss and the trial court's entry of the nunc pro tunc order.

The Appellant's first point on appeal is: The criminal proceedings against the appellant should be dismissed as void because of a lack of a timely entered judgment.

The Appellant first contends that Ark.Code Ann. § 16-90-105 (Repl.2006) requires that a judgment of conviction be entered within thirty days of a trial court's finding of guilty and that the failure to enter the judgment within thirty days of his guilty plea renders the judgment void.

Ark.Code Ann § 16-90-105 provides in pertinent part:

§ 16-90-105. Guilty verdict; sentencing

(a) Upon the return of a verdict of guilty, if tried by a jury, or the finding of guilt if tried by the circuit court without a jury, sentence may be announced.

(b) The judgment of the court may be then and there entered for sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court not more than thirty (30) days thereafter, at which time probation reports may be submitted, matters of mitigation presented, or any other matter heard that the court or the defendant might deem appropriate to consider before the pronouncement of sentence and entry of the formal judgment.

This court reviews issues of statutory construction de novo, as it is for the appellate court to decide what a statute means. Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001). The basic rule of statutory construction is to give effect to the intent of the legislature. Arkansas Dep't of Economic Development v. William J. Clinton Presidential Foundation, 364 Ark. 40, 216 S.W.3d 119 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. Id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant, and we give meaning and effect to every word in the statute, if possible. Id. However, when a statute is ambiguous, we must interpret it according to the legislative intent, and our review becomes an examination of the whole act. Id. We reconcile provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id. We also look to the legislative history, the language, and the subject matter involved. Id. Additionally, statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible. Id.

This court has held that it construes court rules using the same means, including canons of construction, as are used to construe statutes. Gannett River Pub. v. Ark. Dis. & Disab., 304 Ark. 244, 801 S.W.2d 292 (1990)(citing N. Singer, 3A Sutherland Statutory Construction, 67.10 (4th ed.1986)); Moon v. Citty, 344 Ark. 500, 42 S.W.3d 459 (2001). Here, guidance may be had from the prior construction of our old Rule of Criminal Procedure 36.4, (now Ark. R.Crim. P. 33.2) which contained language almost identical to that found in section 16-90-105, and provided in pertinent part:

Upon the return of a verdict of guilty, if tried by a jury, or the finding of guilty if tried by a circuit court without a jury, sentence may be pronounced and the judgment of the court may be then and there entered, or sentencing and the entry of the judgment may be postponed to a date certain then fixed by the court, not more than thirty (30) days thereafter, . . .

In Hoke v. State, 270 Ark. 134, 603 S.W.2d 412 (1980), we were called on to construe Rule 36.4, and in so doing stated the following:

The written judgment was signed, nunc pro tunc, on August 24, 1979, and entered of record. The defendant contended below by a motion to vacate, and contends here, that the judgment is void and he is entitled to an absolute discharge because the judgment was not entered within the 30 days specified in Criminal Procedure Rule 36.4 (1976). The rule is obviously not mandatory, not only because it specifies that the sentencing and judgment "may" be postponed for not more than 30 days, but also because the nunc pro tunc entry of judgments actually rendered earlier has long been the practice in Arkansas. It cannot have been the intent of the rule to permit a convicted felon to escape punishment altogether merely because the judgment was not reduced to writing within 30 days.

We agree with the reasoning in Hoke. The use of "may" in section 16-90-105 indicates that the statute is directory and not mandatory, and our longstanding practice of the nunc pro tunc entry of judgments actually rendered earlier likewise so indicates. We further note that no penalty is mentioned in section 16-90-105 for the failure to enter a judgment within thirty days. For the forgoing reasons, we agree with the trial court's ruling that section 16-90-105 does not require the voiding of a judgment entered more than thirty days after a court's acceptance of a guilty plea.

Ainsworth was jailed for a period of three weeks in 2004 for failing to comply with the terms of his probation, and he was also made to pay $900 toward the fines imposed by the judgment. At the time of his detention and the payments, there is no evidence that the judgment pronounced in 2001 had been entered upon record, and thus it had not become effective. See Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003); Johninson v. State, 330 Ark. 381, 953 S.W.2d 883 (1997). This fact was acknowledged by the trial court's denial of the Appellee's petition to revoke probation.

However, the Appellant also argues that the trial court's failure to enter the sentence renders all charges against him void and cites Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), in support of that proposition. In that case, we held that when a court grants unauthorized dual judgments of sentence and one is imposed and served and the other is the suspension of a sentence, there is an election by operation of law, and the valid sentence is the one actually imposed, while the other is void.

That situation does not exist here. The Appellant has cited to no authority that requires the voidance of all sentences improperly entered, and our legal precedent such as Hoke, supra, as well as strong public policy concerns, dictate that we decline to do so here. The Appellant admits his guilty plea, and his actions subsequent to the plea, such as his meeting with the probation officer and the partial payment of his fine, indicate that he was operating under the assumption that the judgment against him was valid. Ainsworth...