Billingsley v. State, 01-1019

• Decision Date: 05 June 2002
• Docket Number: 01-1019
• Parties: NOT DESIGNATED FOR PUBLICATION CALVIN E. BILLINGSLEY APPELLANT VS. STATE OF ARKANSAS APPELLEE CACR 01-1019 ARKANSAS COURT OF APPEALS
• Court: Arkansas Court of Appeals

NOT DESIGNATED FOR PUBLICATION

CALVIN E. BILLINGSLEY APPELLANT VS. STATE OF ARKANSAS APPELLEE

CACR 01-1019

ARKANSAS COURT OF APPEALS

June 5, 2002

APPEAL FROM HOWARD COUNTY CIRCUIT COURT DIVISION II, HONORABLE CHARLES YEARGEN, CIRCUIT JUDGE

AFFIRMED

JOHN E. JENNINGS, JUDGE

The appellant, Calvin E. Billingsley, pled guilty to the offense of second-degree forgery, and a jury was impaneled for the purpose of sentencing. The State alleged that appellant was an habitual offender, and, at the sentencing hearing, evidence showing twenty-two prior convictions was admitted into evidence. After deliberation, the jury recommended a sentence of thirty years in prison, and the court sentenced appellant in accordance with the jury's decision.

As his only issue on appeal, appellant contends that the trial court erred in allowing the evidence of prior convictions to be admitted and circulated to the jury. We affirm.

Pursuant to Ark. Code Ann. § 5-4-502 (Repl. 1997), which governs sentencing for habitual offenders, the proper procedure is for the trial court to determine, outside the presence of the jury, the number of prior convictions. The court is then to instruct the jury as to the number to be considered by them in fixing the punishment. Although evidence of prior convictions is made a part of the record for appeal purposes, the evidence itself is not introduced for the jury's consideration. However, the jury may be informed of the nature of the previous convictions, and the date and place the offenses occurred. Costillo v. State, 292 Ark. 43, 728 S.W.2d 153 (1987); Graham v. State, 290 Ark. 107, 717 S.W.2d 203 (1986).

Here the trial court failed to follow this procedure by allowing the evidence of prior convictions to be admitted and presented to the jury. Appellant concedes, however, that he raised no objection below. Such a sentencing error is subject to the contemporaneous objection rule. Mackey v. State, 329 Ark. 229, 947 S.W.2d 359 (1997); Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955 (1993). Appellant also concedes that in promulgating Ark. R. Evid. 103(d), the supreme court did not adopt the plain-error rule. Lovelady v. State, 326 Ark. 196, 931 S.W.2d 430 (1996). We do not reverse in the absence of an appropriate objection in the trial court. Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000).

Affirmed.

Griffen and Neal, JJ., agree.