Ellis v. State, CR
| Decision Date | 15 September 1980 |
| Docket Number | No. CR,CR |
| Citation | 270 Ark. 243,603 S.W.2d 891 |
| Parties | Carl ELLIS, Appellant, v. STATE of Arkansas, Appellee. 80-61. |
| Court | Arkansas Supreme Court |
Gibson Law Office by Charles S. Gibson, Dermott, for appellant.
Steve Clark, Atty. Gen. by Mary Davies Scott, Asst. Atty. Gen., Little Rock, for appellee.
A jury found appellant guilty of aggravated robbery in violation of Ark.Stat.Ann. §§ 41-202 and 41-2103 (Repl.1977). At the bifurcated trial, on the issue of being a habitual criminal, the state introduced a previous conviction for burglary and theft of property. The jury then found he had been previously convicted of these alleged prior felonies. His punishment, as a habitual offender, was assessed at 15 years' imprisonment. Appellant contends the court erred in allowing the introduction of his previous conviction of burglary and theft of property as evidence of two separate prior felonies.
The state acknowledges this was error and we agree. Ark.Stat.Ann. § 41-1001(3) (Repl.1977) provides in pertinent part:
For the purpose of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt . . .
The burden is on the prosecution to offer proof that the attending felony is not the object of the burglary. Steffen v. State, 267 Ark. 402, 590 S.W.2d 302 (1979). Here no such proof was shown by the state. Therefore, appellant's prior conviction of burglary and theft can only be counted as one offense. One prior offense, as here, will not support an enhanced sentence. § 41-1001(1).
However, such an error does not necessarily mandate a new trial. We have reduced the sentence in lieu of reversing and remanding for a new trial. Steffen v. State, supra; McConahay v. State, 257 Ark. 328, 516 S.W.2d 887 (1974). The authority of this court to reduce a sentence on appeal was discussed at length in Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977), cert. denied 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158 (1977). See also Clark v. State, 246 Ark. 876, 440 S.W.2d 205 (1969); Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (1972); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974); Estes & Colburn v. State, 258 Ark. 597, 528 S.W.2d 138 (1975); Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972); Ark.Stat.Ann. § 27-2144 (Repl.1979); and Ark.Stat.Ann. § 43-2725.2 (Repl.1977).
Here the jury had found the appellant guilty of aggravated robbery before hearing any evidence in the bifurcated proceeding with respect to the alleged felonies, which evidence, as indicated, constituted error. The sufficiency of the evidence as to aggravated robbery is not questioned. Therefore, to avoid any possibility of prejudice to the appellant, we reduce his sentence to 5 years, the minimum for aggravated robbery, unless the state objects within 17 calendar days after this opinion becomes final. Should the state object, the judgment is reversed and the cause remanded.
Affirmed upon acceptance of modification.
I agree that the conviction has to be reversed. However, the majority is reducing the sentence, in effect. In that regard I disagree. The court has taken the position that it has no authority to reduce a sentence except in certain instances. It can reduce a sentence in a capital punishment case. Collins v. State, 261 Ark. 195, 548 S.W.2d 106 (1977). Where a legal error has been made and it can be corrected without prejudice by reducing a sentence, a reduction can be made.
While I feel this court has the appellate authority to so act, I do not presume that this power ought to be exercised in every instance.
First of all, Arkansas has placed the responsibility for sentencing criminal defendants with the jury and the trial judge. While, in my judgment, that procedure is flawed, it is still the law and we should essentially respect it. The reduction in this case does not take into consideration either the sentiments of the judge or jury-it presumes those...
To continue reading
Request your trial
-
Jones v. State of Ark.
...be re-tried or have his sentence modified to the minimum applicable punishment under the general sentencing statute. Ellis v. State, 270 Ark. 243, 603 S.W.2d 891, 892 (1980); McDonald v. State, 266 Ark. 56, 582 S.W.2d 272, 274 (1979). We conclude that the erroneous application of the habitu......
-
Jones v. State
...Jones argues that the burden is on the State to show that the attending felony was not the object of the burglary, see Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980), and because the State failed to offer proof that the rape was not the object of the burglary, Jones contends that he ha......
-
Brown v. State
...it may be corrected by reducing the sentence in lieu of reversing and remanding for a new trial. Richards, supra; Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980); Ark.Code Ann. § 16-67-325(a) The sentences are reduced by modifying each term of imprisonment to the term fixed by the jury.......
-
Bangs v. State, CR
...it may be corrected in lieu of reversing and remanding. Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992); Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980). Therefore, we affirm the trial court's revocation based on the escape and modify the conditions so that appellant is no longer......