Canard v. State, 4818

• Decision Date: 14 November 1955
• Docket Number: No. 4818,4818
• Citation: 225 Ark. 559,283 S.W.2d 685
• Parties: Johnny CANARD, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 685

283 S.W.2d 685

225 Ark. 559

Johnny CANARD, Appellant, v. STATE of Arkansas, Appellee.

No. 4818.

Supreme Court of Arkansas.

Nov. 14, 1955.

Ivan Williamson and Ben B. Williamson, Mountain View, for appellant.

Tom Gentry, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., for appellee.

WARD, Justice.

This appeal involves the interpretation of Act 44 of 1953, Ark.Stats. § 43-2324, Supplement, and its application to a situation where a person, upon a plea of guilty, is given a suspended sentence for one year in the penitentiary and the suspension is revoked by the trial judge more than a year later.

Appellant, Johnny Canard, on December 3, 1953, pled guilty to the crime of grand larceny in the Circuit Court of Stone County. At the same time the presiding judge signed this order '* * * Johnny Canard is hereby sentenced to serve one year in the state penitentiary at hard labor, which sentence is hereby suspended on recommendation of all the parties hereto, upon the good behavior of the defendant for said period of time, and upon the payment of all the costs of this action.' On the original criminal docket sheet, which is a part of the record, in the case styled 'State of Arkansas v. Johnny Canard', appears the following notation: '12/3/53 D. waives arraignment--plea of guilty--suspended sentence of one year * * *'

On May 2, 1955 the presiding judge of the Stone Circuit Court, upon a showing by the prosecuting attorney that Canard had violated the conditions of his suspended sentence by law violations in February 1954 and by failing to pay the costs, revoked Canard's suspended sentence and ordered him to begin serving the sentence formerly announced. From this order of revocation Canard has appealed to this court.

We have reached the conclusion that, under the above factual situation, the trial court had no authority on May 2, 1955 to revoke the suspended sentence given appellant on December 3, 1953. This conclusion has been reached after a careful analysis of the various Acts of the Legislature relative to this situation and the interpretations placed thereon in our former decisions.

The first announcement of the legislature relative to this matter was Act 76 of 1923. Section 1 of this Act gave Circuit Courts in criminal cases, upon a plea of guilty or a verdict of guilty, the authority 'to postpone the pronouncement of final sentence and judgment'. (Emphasis supplied.) Section 2 gave the trial judge the power to revoke the suspension and postponement mentioned in Section 1.

Act 158 of 1945, Ark.Stats. § 43-2326, gave all courts of record authority 'to suspend the execution of jail sentences or the imposition of fines, or both, in all criminal cases, pending before said courts'. (Emphasis supplied.)

Act 262 of 1945, Ark.Stats. § 43-2324, re-enacted Section 1 of the 1923 Act above mentioned and added the following: 'Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence.' (Emphasis supplied.)

Act 358 of 1949 purported to amend Act 76 of 1923. The Act referred to Pope's Digest § 4035 but evidently meant to refer to § 4053 which is the same as the 1923 Act. It provides that 'all postponements of final sentences * * * shall run from the date of the plea or verdict of guilty and for the period of the statute of limitation for each offense and at the expiration of said period of limitation shall expire in like manner as if sentence had been pronounced'.

In 1953 Act 44 was passed which is exactly like Act 262 of 1945 except that it applies to 'criminal trials in all courts of record' while said Act 262 applied to 'criminal trials in circuit court(s)'. (Emphasis supplied.)

This court in the cases of Davis v. State, 169 Ark. 932, 277 S.W. 5, and Ketchum v. Vansickle, 171 Ark. 784, 286 S.W. 948 [both decided after the 1923 Act but before the 1945 Acts] made a clear cut distinction between (a) the act of postponing the date of pronouncing sentence and (b) the act of postponing the execution of a sentence already pronounced. The 1923 Act dealt with situation (a) while Act 158 of 1945 dealt with situation (b). Therefore it was held in the Davis case, supra, that where the trial court first pronounced sentence and then attempted to postpone the execution thereof the action was void and the defendant could later be made to serve out his sentence. In speaking of the 1923 Act the court there said [169 Ark. 932, 277 S.W. 7]: 'Indeed, the act only gives the circuit court authority to postpone the pronouncement of final sentence, and does not give it authority to stay the execution of a sentence already pronounced'. In the Ketchum case, supra, the same factual situation obtained and the decision there was rested on the decision of the Davis case, supra. It is noted that in both of these cases the suspension was for an indefinite period of time.

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