Glaze v. State

• Decision Date: 03 November 2011
• Docket Number: No. CR 11–484.,CR 11–484.
• Citation: 385 S.W.3d 203,2011 Ark. 464
• Parties: Chariell Ali GLAZE, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 464

385 S.W.3d 203

Chariell Ali GLAZE, Appellant

v.STATE of Arkansas, Appellee.

No. CR 11–484.

Supreme Court of Arkansas.

Nov. 3, 2011.

Recognized as Repealed by Implication

Ark.Code Ann. § 16–90–201

Caroline Lowry Winningham, Conway, for appellant.

Dustin McDaniel, Att'y Gen., by: John T. Adams, Ass't Att'y Gen., for appellee.

PAUL E. DANIELSON, Justice.

Appellant Chariell Ali Glaze appeals from a judgment and commitment order of the Faulkner County Circuit Court convicting him of possession of a firearm by certain persons and sentencing him as a habitual offender to twenty-five years' imprisonment. On appeal, Glaze argues three points for reversal: (1) the circuit court erred in sentencing Glaze as a habitual offender, as the amended felony information did not specifically set out the number and nature of his prior convictions; (2) the circuit court erred in permitting the State to file the amended felony information on the morning of trial; and (3) the circuit court erred in sentencing Glaze pursuant to Arkansas Code Annotated section 16–90–201 (Repl.2006), as it was repealed by implication.¹ We affirm in part, and reverse and remand in part.

Because Glaze does not challenge the sufficiency of the evidence supporting his convictions, only a brief recitation of the facts is necessary. See, e.g., Vance v. State, 2011 Ark. 243, 383 S.W.3d 325. On March 27, 2009, a felony information was filed against Glaze charging him with possession of a firearm by certain persons and aggravated assault.² On June 8, 2009, Glaze filed a discovery receipt wherein he acknowledged receiving a certified copy of a judgment and commitment order convicting him of three prior felonies in 1998.³

A jury trial was held on July 13, 2010. On the morning of trial, the State filed an amended felony information charging Glaze as a habitual offender. Glaze objected to the amendment on the grounds that he was given no notice of a fourth conviction in Georgia that the State intended to introduce against him during sentencing. The circuit court overruled Glaze's objection and allowed the amendment because it did not change the elements of the crime charged. At trial, Glaze testified and admitted to the three prior convictions in Arkansas and that he was on probation for a felony conviction of battery in Georgia. At the conclusion of the evidence, Glaze was convicted of possession of a firearm by certain persons, a Class B felony.

During the sentencing phase of trial, the State argued that because a judgment and commitment order was entered into evidence establishing three prior convictions in Arkansas and because Glaze admitted to a fourth conviction in Georgia, he was subject to an enhanced term of imprisonment pursuant to Ark.Code Ann. § 16–90–201(3)(A). Glaze again objected to the fourth conviction in Georgia and argued that because the State produced no record of such conviction, it should not be considered in sentencing. The circuit court overruled Glaze's objection and gave the following jury instruction:

Glaze has four previous felony convictions and is classified as an [sic] habitual offender. The punishment—or the offense of possession of a firearm by a felon when committed by an [sic] habitual offender is punishable by imprisonment in the Arkansas Department of Correction for not less than twenty years nor more than thirty years.⁴The jury sentenced Glaze to twenty-five years' imprisonment, which the circuit court accepted. On appeal to the Arkansas Court of Appeals, Glaze's convictions were affirmed; however, the court of appeals remanded for resentencing on the grounds that because Glaze was charged under the Arkansas Criminal Code, his sentence must be in accordance with the Code's habitual-offender statute, Arkansas Code Annotated section 5–4–501 (Supp.2007). See Glaze v. State, 2011 Ark. App. 283, 378 S.W.3d .

Because we granted the State's petition for review, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(e) (2011). Upon a petition for review, we consider an appeal as though it had been originally filed in this court. See, e.g., Fuson v. State, 2011 Ark. 374, 383 S.W.3d 848.

I. Form of Amended Felony Information

As his first point on appeal, Glaze argues that the circuit court erred in sentencing him as a habitual offender. Specifically, Glaze asserts that the amended felony information lacked any specificity regarding the number and nature of his prior convictions. In response, the State contends that the amendment was sufficient to alert Glaze that his prior convictions would be introduced at sentencing.

Whenever the State seeks to charge one as a habitual offender, the previous offense is an essential element of the crime charged; thus, the habitual-offender allegation must be included in the felony information. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977). The purpose of this requirement is to afford the defendant notice of the essential elements that the State will rely on in assessing punishment. See Baumgarner v. State, 316 Ark. 373, 872 S.W.2d 380 (1994). We have held that a felony information containing general language referring to the habitual-offender statute is sufficient to put the defendant on notice that his prior convictions may be introduced in assessing an enhanced sentence. See Wilson v. State, 251 Ark. 900, 475 S.W.2d 543 (1972).

While the instant amendment did not specifically state the number or nature of Glaze's prior convictions, such specificity is not required. In Wilson, supra, we explained that while the felony information did not specifically list the defendant's prior convictions, the information was sufficient because it contained language explaining that the charges were filed under the habitual-offender statute.⁵ Likewise, the amended felony information in the instant case incorporated by reference the charges included in the original information and quoted the habitual-offender statute of Title 16. We hold that this was sufficient to alert Glaze to the fact that he could be sentenced as a habitual offender and that his prior convictions could be considered in assessing an enhanced sentence. We further note that any defect in the general allegation charging Glaze as a habitual offender could have been cured by the filing of a motion for a bill of particulars. See Wilson, supra. Accordingly, we hold that there was no error in the form of the amended felony information and affirm on this point.

II. Timing of Amended Felony Information

As his second point on appeal, Glaze argues in the alternative that the circuit court erroneously allowed the State to amend the felony information on the morning of trial. Specifically, Glaze contends that the amendment should not have been allowed because he did not have notice of the conviction in Georgia. The State responds that an amendment adding a habitual-offender allegation does not change the nature of the crime charged and that Glaze was not unfairly surprised by the amendment.

It is well settled that felony informations may be amended up to a certain point after the jury as been sworn, but before the case has been submitted to it, as long as the amendment does not change the nature of the crime charged or create an unfair surprise for the defendant. See Baumgarner, supra. An amendment adding an allegation that the defendant is a habitual offender does not change the nature of the crime charged; rather, it authorizes the imposition of an enhanced sentence by affording evidence to increase the final punishment. See Baumgarner, supra (citing Finch, 262 Ark. at 317, 556 S.W.2d at 436).

While this court has never defined “unfair surprise,” there is nothing in the instant case to indicate that Glaze was unfairly surprised by the amendment. The fact that the State filed the amended felony information on the morning of trial is of no consequence. In Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990), we affirmed an amendment that was filed on the day of the appellant's trial. There, we noted that the amendment did not change the nature of the crime charged as it merely added an allegation that Traylor was a habitual offender and that the record reflected that Traylor knew of his habitual-offender status and of the State's intention to pursue enhanced sentencing.

Here, the record reflects that prior to the filing of the amended felony information, Glaze received a certified copy of the judgment and commitment order convicting him of three prior felonies in Arkansas. The record further reflects that at a bond-and-motions hearing held on December 17, 2009, the State questioned Glaze regarding his prior convictions, specifically mentioning a 2007 conviction in Georgia of first-degree battery. Because the amendment did not change the nature of the crime charged and because there is no basis for concluding that Glaze was unfairly surprised by the State's amended felony information, we hold that there was no error in the timing of the amendment. Accordingly, we affirm on this point.

III. Ark.Code Ann. § 16–90–201

Finally, Glaze argues that Ark.Code Ann. § 16–90–201 was repealed by implication with the enactment of the Arkansas Criminal Code. Glaze maintains that because he was charged and convicted under the Criminal Code, his sentence must be in accordance with the Code's habitual-offender statute, Ark.Code Ann. § 5–4–501. The State responds that the General Assembly did not take up the entire subject of sentencing habitual offenders anew when it enacted the Criminal Code and that there is no irreconcilable conflict between the two statutes such that they cannot be read together; thus, the State contends that section 16–90–201 was not repealed by implication.⁶

On review of the legality of a sentence, we must determine whether the circuit court had the authority to impose a particular sentence and not whether the sentence is illegal on its face or within the prescribed statutory range. See Cross v. State, 2009...