Barnum v. State, CR
| Decision Date | 06 July 1982 |
| Docket Number | No. CR,CR |
| Parties | Glenn BARNUM, Petitioner, v. STATE of Arkansas, Respondent. 79-190. |
| Court | Arkansas Supreme Court |
Robert A. Newcomb, Little Rock, for petitioner.
Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for respondent.
Petitioner Glenn Barnum was convicted in the Circuit Court of Pulaski County of attempted capital murder, Ark.Stat.Ann. § 41-701, 1501 (Repl.1977), and aggravated robbery, Ark.Stat.Ann. § 41-2102 (Repl.1977). He was sentenced to a term of 24 years imprisonment for attempted capital murder and a term of 20 years imprisonment for aggravated robbery with the sentences to run consecutively. We affirmed. Barnum v. State, 268 Ark. 141, 594 S.W.2d 229 (1980). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37 for the purpose of vacating or setting aside his 20 year sentence for aggravated robbery.
Petitioner alleges that it was improper for him to be convicted and sentenced for attempted capital murder and aggravated robbery since aggravated robbery was the underlying specified felony to the charge of attempted capital murder. He asserts, inter alia, that the conviction and sentence for aggravated robbery violates Ark.Stat.Ann. § 41-105 (Repl.1977).
When a criminal offense, by its definition, includes a lesser offense, a conviction cannot be had for both offenses. § 41-105. Rowe v. State, 275 Ark. 30, 627 S.W.2d 16 (1982); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). Section 41-105, supra, reads in pertinent part:
(1) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense, if:
(a) one offense is included in the other as defined in subsection (2):
(2) A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:
(a) it is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(b) it consists of an attempt to commit the offense otherwise included within it; or
(c) it differs from the offense charged only in the respect that a less serious risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.
In proving the elements of attempted capital murder, it is necessary to prove the elements of...
To continue reading
Request your trial
-
McCoy v. State
...v. State, 277 Ark. 175, 639 S.W.2d 738 (1982) (per curiam); Brewer v. State, 277 Ark. 40, 639 S.W.2d 54 (1982); Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982) (per curiam); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982) (per curiam); Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (19......
-
Flowers v. Norris
...v. State, 295 Ark. 303, 748 S.W.2d 641 (1988); Rowe v. State, 275 Ark. 37, 627 S.W.2d 16 (1982) (per curiam); Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982) (per curiam). Recently, in Meny, 340 Ark. 418, 13 S.W.3d 143, this court held that where the appellant was convicted of three co......
-
Walker v. State
...(Repl.1997) with regard to sentencing. We agree with the State and affirm appellant's sentences. Appellant cites Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982), as authority for the proposition that a defendant may not be sentenced on both a charged felony and an underlying felony. It......
-
Jones v. State, CR
...How far must we go before we adopt the plain error rule beyond Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983); Barnum v. State, 276 Ark. 477, 637 S.W.2d 534 (1982); Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Wilson & Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977); S......