Dollar v. State, CR
| Decision Date | 30 September 1985 |
| Docket Number | No. CR,CR |
| Citation | 287 Ark. 61,697 S.W.2d 868 |
| Parties | Eric Reed DOLLAR, Appellant, v. STATE of Arkansas, Appellee. 85-148. |
| Court | Arkansas Supreme Court |
John A. Crain, for appellant.
Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., for appellee.
Appellant, Eric Reed Dollar, was charged with possession of marijuana, a controlled substance, with the intent to manufacture and deliver. He was found guilty and sentenced to a term of twelve years in the Department of Correction. Ark.Stat.Ann. § 82-2617(a)(1)(iv), (Act 306 and Act 417 of 1983) under which appellant was charged, failed to state the offense was a felony and on that basis appellant claims error in the trial court's refusal to grant his motion to reduce the charge to a misdemeanor.
Appellant relies on Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972). In Bennett, the appellant was convicted under § 82-2617, as it was originally enacted by Act 590 of 1971, and sentenced to one year imprisonment in the state penitentiary. That penalty provision provided:
(1) Any person who violates this subsection with respect to
(a) a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than fifteen years or fined not more than $25,000.
Felonies and misdemeanors were statutorily defined at the time as:
§ 41-102. Public offenses are felonies and misdemeanors.
§ 41-103. A felony is an offense of which the punishment is death or confinement in the penitentiary.
§ 41-104. All other public offenses are misdemeanors.
In Bennett we held the failure of Act 590 to include the words "imprisoned in the penitentiary," required reversal. We reasoned that penal provisions are strictly construed and nothing would be taken as intended which is not clearly expressed. All doubts were to be resolved in favor of the defendant.
Appellant argues the principles stated in Bennett apply with equal force to this case and the definitions of felony and misdemeanor that now appear in the 1976 Arkansas Criminal Code require the same result in construing the 1983 statute.
§ 82-2617(a)(1)(iv) (Acts 306, 417, 1983) provided:
Criminal Penalties.
(a) Except as authorized by this Act it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(1) Any person who violates this subsection with respect to:
(i) A controlled substance classified in schedule I or II, which is a narcotic drug, is guilty of a class Y felony;
(ii) Any other controlled substance classified in schedule I, II, or III is guilty of a class B felony;
(iii) A substance classified in schedules IV or V is guilty of a class C felony;
(iv) A controlled substance classified in Schedule VI shall be (a) imprisoned for no less than four (4) nor more than ten (10) years and/or fined no more than twenty-five thousand dollars ($25,000) if the quantity of the substance is less than ten (10) pounds, or (b) imprisoned for no less than five (5) years nor more than twenty (20) years and/or fined no less than fifteen thousand dollars ($15,000) nor more than fifty thousand dollars ($50,000) if the quantity of such substance is ten (10) pounds or more but less than one hundred (100) pounds, or (c) imprisoned for no less than six (6) years nor more than thirty (30) years and/or fined no less than fifteen thousand dollars ($15,000) nor more than one hundred thousand dollars ($100,000) if the quantity of the substance is one hundred (100) pounds or more.
The two sections cited by appellant from the criminal code provide:
§ 41-112 Felonies.
(1) An offense is a felony if:
(a) it is so designated by this Code.
(b) it is so designated by a statute not a part of this Code.
(2) Felonies are classified as follows:
(3) Any felony defined by a statute not a part of this Code that neither specifies the class of the felony nor prescribes limitations on a sentence to imprisonment upon conviction thereof is a class D felony. Any felony defined by a statute not a part of this Code that does prescribe limitations on a sentence to imprisonment upon conviction thereof is an unclassified felony.
§ 41-113 Misdemeanors.
(1) An offense is a misdemeanor if:
(a) it is so designated by the Code.
(b) it is so designated by a statute not a part of this Code.
(c) it is not designated a felony and a sentence to imprisonment is authorized upon conviction thereof.
Appellant argues that under § 41-112(1) & (2), an offense is only a felony if named a felony by either the criminal code or by other statutes and as the offense in § 82-2617(a)(1)(iv) was not so designated that offense is not a felony. We disagree with appellant's conclusion.
Bennett was correct in its statement of strict construction of penal statutes. However, even strict construction of penal statutes does not override the primary consideration of all statutory construction--the intent of the legislature.
The rule is stated in Sutherland, Statutory Construction:
The Supreme Court expressed a similar view in Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955);
It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.
This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense which other enactments, not cast in technical language, are to be read ... It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses....
We have followed the same approach in our cases. In Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980) we said:
See also Fairchild v. State, 286 Ark. 191, 194, 690 S.W.2d 355 (1985); St. Louis, I.M. & S. Ry. v. Freeman, 95 Ark. 218, 128 S.W. 1024 (1910).
In the case before us there are no doubts to be resolved in favor of the defendant. A simple examination of the statute before it was amended, Act 557 of 1977, and as amended in Acts 417 and 306, makes the intention and expression of the legislature clear. The amended statute was enacted to upgrade the penalties for offenses which were already felonies, and it is obvious the legislature intended no change in the felony status of these offenses.
Narcotic controlled substances in Schedule I were formerly class A felonies but in the amended statute were upgraded to class Y felonies. Non-narcotic substances in Schedules I, II and III were B felonies and were not changed. Substances in Schedules IV, V and VI were formerly class C felonies. As amended, IV and V substances remained C felonies, but Schedule VI substances which had also been C felonies were significantly upgraded. The new penalties for Schedule VI substances consisted of three ranges of sentences depending on the quantity of the substance possessed--4-10 years, 5-20 years and 6-30 years. Not only were all three ranges harsher than the previous class C felony (3-10 years) the latter two ranges are classified by the criminal code penalty section as class B and A felonies, respectively. Certainly within this amended sentencing scheme it would be wholly contrived to argue the legislature intended this offense to be lowered to the status of a misdemeanor while at the same time increasing its punishment to that of the higher range of felonies.
This view of the legislative intent is reinforced by the emergency clause of Acts 417 and 306, which reads:
It is hereby found and determined by the General Assembly that the problem of drug abuse in this State is increasing at an alarming rate and that additional provisions are needed to assist in the enforcement of the provisions of Act 590, as amended ... furthermore, it is hereby found and determined by the General Assembly that the problem of manufacturing, delivering, or possessing with intent to manufacture or deliver, those controlled substances classified in schedule VI is increasing at an alarming rate, both in terms of occurrence and quantity, and that additional provisions are needed to assist in the enforcement of the provisions of Act 590, as amended, particularly with respect to those substances classified in Schedule VI.
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