Gross v. State

• Decision Date: 23 May 1966
• Docket Number: No. 5201,5201
• Citation: 403 S.W.2d 75,240 Ark. 926
• Parties: Billy GROSS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 75

403 S.W.2d 75

240 Ark. 926

Billy GROSS, Appellant, v.STATE of Arkansas, Appellee.

No. 5201.

Supreme Court of Arkansas.

May 23, 1966.

H. Allan Dishongh, Little Rock, for appellant.

Bruce Bennett, Atty. Gen., by Fletcher Jackson, Asst. Atty. Gen., Little Rock, for appellee.

COBB, Justice.

On November 4, 1958, appellant was convicted in the Pulaski Circuit Court of the offense of burglary and grand larceny and was given a five-year sentence which was suspended by the court for the term of said sentence in accordance with the provisions of Ark.Stat.Ann. § 43--2324(Repl.1964), which reads as follows:

'Postponing pronouncement of sentence.--Whenever, in criminal trials in all courts of record, a plea of guilty shall have been accepted or a verdict of guilty shall have been rendered, the Judge trying the case shall have authority, if he shall deem it best for the defendant and not harmful to society, to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable as to probation of the person convicted, the restitution of the property involved, and the payment of the costs of the case.Such postponement shall be in the form of a suspended sentence for a definite number of years, running from the date of the plea or verdict of guilty and shall expire in like manner as if sentence had been pronounced; provided however, the Court having jurisdiction may at any time during the period of suspension revoke the same and order execution of the full sentence.'(Italics ours.)

On September 29, 1963, appellant was present at a drinking party and fight in Conway County resulting in the killing of one of the participants.Appellant was thereafter charged with beating the deceased to death with malice aforethought, premediation and intent to murder, i.e., murder in the first degree.

On October 16, 1963, the Pulaski Circuit Court, after hearing, entered an order revoking appellant's suspended sentence of November 4, 1958, and sentencing appellant to the penitentiary for a term of five years from October 16, 1963.

The record before us also reflects that appellant was subsequently brought to trial on the murder charge in Conway County and was found guilty by the jury on March 5, 1964, a sentence of life imprisonment being imposed.

On November 5, 1965, appellant, while confined in the penitentiary, filed his petition with the Pulaski Circuit Court for a writ of habeas corpus expressly invoking procedures provided by Criminal ProcedureRule No. 1, set forth in our per curiam order of October 18, 1965, and appearing at 239 Ark. 850a and 850b.

Appellant's petition for writ of habeas corpus states that it is based upon the contention that the Pulaski Circuit Court had erroneously revoked appellant's suspended sentence by taking such action before appellant had been actually convicted of a new offense.Appellant's petition was reached for hearing on January 13, 1966, when appellant was brought before the court by prison authorities and was represented by counsel, H. Allen Dishongh.All evidence offered on behalf of appellant was duly received and made a part of the record.This included some 22 letters received by appellant from various parties, including his attorney, court officials and judges.The evidence reflected that appellant was convicted of the charge of first degree murder in the Conway Circuit Court.

The Pulaski Circuit Court dismissed appellant's petition for a writ of habeas corpus and appellant is here on appeal from that dismissal.

Appellant's contention that a subsequent conviction is a condition precedent to revocation of a suspended sentence.

We have examined this contention and find that it is untenable for many reasons, including the following:

1. Ark.Stat.Ann. § 43--2324(Repl.1964), which is the statutory authority for revocation of suspended sentences, contains no language so limiting the power and discretion of the trial court in such matters.

2.Appellant has not cited to this court a single case of any jurisdiction holding that an actual conviction for a subsequent offense is necessary before a suspended sentence may be revoked.

3.Trial courts are authorized under the statute quoted to suspend sentences when they deem it best for the defendant and not harmful to society.Likewise, when the trial court is persuaded that it is for the best interests of the defendant and of society to revoke a suspended sentence, he has and may exercise such discretion following a hearing.

4.While conviction for a subsequent offense is evidence of great weight in support of a petition for revocation of a suspended sentence, such evidence is by no means decisive in such a proceeding.For example, a subsequent conviction for negligent homicide in a traffic accident, absent evidence of deliberate misconduct by the accused, might very well be given little or no weight by the trial court in such a proceeding.

5.A person convicted of a criminal offense, who is released upon probation or a suspended sentence, knows that the leniency extended is conditioned upon his good behavior.When such an individual embarks upon a course of misbehavior, he forfeits the leniency extended him.

6.It is obvious that to leave a person...