Garrigus v. State, CR
| Decision Date | 03 July 1995 |
| Docket Number | No. CR,CR |
| Citation | 901 S.W.2d 12,321 Ark. 222 |
| Parties | Clifton GARRIGUS, Appellant, v. STATE of Arkansas, Appellee. 95-204. |
| Court | Arkansas Supreme Court |
Doug Norwood, Rogers, for appellant.
Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.
Appellant Clifton Duane Garrigus appeals from his conviction for underage driving while under the influence of alcohol in violation of Act 863, Acts of Arkansas (1993), which offense is codified at Ark.Code Ann. § 5-65-301 through -311 (Repl.1993). For his sole point of error, Garrigus contends the trial court erred in denying his motion to declare Act 863 unconstitutional. We find no merit to the argument and affirm.
Garrigus asserts that Act 863, cited as the "Underage DUI Law" is unconstitutional for three reasons. First, he appears to claim that because the trial court found section 5-65-306 to be facially unconstitutional, the entire act is rendered unconstitutional. Section 5-65-306 mandates that persons convicted of underage DUI be ordered to perform public service work "of the type and for the duration as deemed appropriate by the court." The trial court agreed with Garrigus, and it was conceded by the state, that the statute is violative of due process rights in that it grants the trial judge authority to mandate the performance of public service indefinitely.
We need not consider the constitutionality of section 5-65-306, as Garrigus' argument to the trial court was successful. A party who prevails on a certain issue at trial cannot later raise the issue on appeal. See Kelley v. Medlin, 309 Ark. 146, 827 S.W.2d 655 (1992). In addition, the Benton County Circuit Court found that section 5-65-306 was unconstitutional without the benefit of an adversarial argument from the state. This Court has previously held that it will not consider the constitutionality of section 5-65-306 in the absence of a fully developed adversarial case at trial level. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). This was not done in this case.
In his second point for reversal, Garrigus asserts that section 5-65-311(a) violates a defendant's former jeopardy right not to suffer multiple punishment for the same offense. That statute provides that the penalties for underage DUI "shall be in addition to all other penalties prescribed by law for the offense under other laws of the State of Arkansas." The trial court found Garrigus guilty only of underage DUI, however, and imposed sentence under those provisions. There was no finding of guilt or punishment imposed under another state law; therefore Garrigus lacks standing to raise the issue. See David v. State,...
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