English v. State, CR
| Decision Date | 23 November 1981 |
| Docket Number | No. CR,CR |
| Citation | 274 Ark. 304,626 S.W.2d 191 |
| Parties | Daniel Odell ENGLISH, Appellant, v. STATE of Arkansas, Appellee. 81-67. |
| Court | Arkansas Supreme Court |
John W. Settle, Fort Smith, for appellant.
Steve Clark, Atty. Gen., by Victra L. Fewell, Asst. Atty. Gen., Little Rock, for appellee.
After a jury trial, appellant was convicted of rape and burglary and was sentenced as a habitual offender to life imprisonment and fined $15,000 for rape and to 40 years for burglary. The sentences were set to run consecutively. On appeal we reverse and remand for a new trial.
The evidence showed that on November 9, 1980, at approximately 7:30 p. m. appellant entered the victim's apartment through an open window and raped her. Five days later appellant returned to the victim's home "around midnight" and knocked on her door; she recognized him as her previous attacker and called the police. A few minutes later appellant was arrested in a parking area one block from the victim's home. Appellant was placed in the back seat of a police vehicle and was carried directly to the victim's residence where she made a positive identification.
Ark.Stat.Ann. § 41-1001 (Supp.1981) provides that a person who has been "convicted" or "found guilty" of previous offenses may be sentenced to an extended period of imprisonment (as a habitual offender). Appellant argues, and we agree, that the trial court erred in allowing the State to introduce into evidence as a previous conviction proof of a "court probation" proceeding in which there was no conviction or finding of guilt (Sebastian County Circuit No. CR-1978).
In Cantrell v. State, 258 Ark. 833, 529 S.W.2d 136 (1975), we defined court probation:
Under the 'court probation' procedure, the trial court retains jurisdiction over one admittedly guilty of a felony, but gives him a chance to rehabilitate himself, by a formal refusal to accept his guilty plea. By retaining jurisdiction, however, the trial court can revoke the 'probation' by accepting the plea at a later time, if the person commits another offense.
Such a proceeding does not constitute a "conviction" or "finding of guilt" under the above statute until the plea is finally accepted and, therefore, is inadmissible for sentence enhancement purposes.
The Arkansas Criminal Code which became effective January 1, 1976, Act 280 of 1975, codified this common law "court probation" procedure in Art. 3, Disposition of Offenders, (A.S.A. §§ 41-801-1351 (Repl. & Supp.1981) ) by providing in Ark.Stat.Ann. § 41-803(5) (Supp.1981) that "If a defendant pleads guilty or is found guilty of an offense ... the court may suspend imposition of sentence or place the defendant on probation...." Placing the defendant on probation without imposing a sentence was the essential element in "court probation" as it is under the Arkansas Criminal Code. All other statutory sentencing procedures require that a judgment of conviction be entered, and the sentence begins to run from the time of the sentence and it is immaterial whether the trial court suspends (a) the imposition of the sentence or (b) the execution of the sentence. See Canard v. State, 225 Ark. 559, 283 S.W.2d 685 (1955); Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). The Criminal Code further provides in Art. 3, § 803(1) that "No defendant convicted of an offense shall be sentenced otherwise than in accordance with this article." It is, therefore, clear that apart from statute this common law "court probation" procedure is no longer available as a sentencing alternative. See McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).
Other objections raised by appellant are not considered since they will not likely be raised in the same context upon retrial.
Reversed and remanded.
I concur in the results reached by the majority, but I am not sure that we are in agreement on the grounds for the action taken. So far as I am concerned, the term "court probation" is merely a phrase used when a trial court places a defendant on probation. I do not know that there has ever been a legal definition for the words "court probation." The term has been used most frequently in one particular area of the state, but it has been used all across the state at one time or another. It is my opinion that there is "court probation" whether the probation is prior to acceptance of a plea or finding of guilt or whether imposed after the acceptance of a plea or finding of guilt. No significance should be given to the term "court probation." The court is the only source of a sentence of probation and in this sense, of course, it is court probation. I suppose it could be contrasted with that type of probation used by the Board of Pardons and Paroles, in which case it would be proper to refer to the probation as "parole probation."
The majority opinion correctly states that Ark.Stat.Ann. § 41-1001 (Supp.1981) provides that a person who has been convicted or found guilty of a previous felony may be convicted as an habitual offender. The question then to be determined by this court is what is a conviction or finding of guilt. Ark.Stat.Ann. § 41-803(1) (Supp.1981) states No defendant convicted of an offense shall be sentenced otherwise than in accordance with this Article.
This language is absolutely no help in determining the meaning of a conviction or finding of guilt. It simply states that a defendant must be convicted before he is sentenced. Certainly, if there is a docket entry or a court order in which the defendant is convicted or found guilty, there is no question to be decided. However, when the docket entry or the order specifically states that the guilty plea has not been accepted or the trial court has suspended making a finding of guilt or innocence, there is equally no question concerning conviction or finding of guilt. We must then look elsewhere to determine what is meant by conviction or finding of guilt.
The majority cite the case of Canard v. State, 225 Ark. 559, 283 S.W.2d 685 (1955), as standing for the proposition that it is immaterial if the trial court suspends imposition of the sentence or execution of the sentence. This interpretation is unclear. Canard pled guilty and the court immediately signed an order sentencing him to serve one year in the state penitentiary. However, the court suspended the sentence on certain conditions. In fact, the Canard decision stated that it was immaterial whether the court postpones the pronouncement of the sentence or the execution of the sentence already pronounced. It is obvious that either way the statement was based upon an existing guilty plea or a finding of guilt. There was no suspension of a finding of guilt because the court entered such finding on the date of the guilty plea. The...
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...824 (1974). He argues that one of his convictions was actually "court probation" and according to our decision in English v. State, 274 Ark. 304, 626 S.W.2d 191 (1981), it was not a conviction that could be used to enhance his sentence pursuant to Ark.Stat.Ann. § 41-1001 (Supp.1981), the ha......
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