Haskins v. State, CR78-112

• Decision Date: 30 October 1978
• Docket Number: No. CR78-112,CR78-112
• Citation: 572 S.W.2d 411,264 Ark. 454
• Parties: Larry HASKINS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 411

572 S.W.2d 411

264 Ark. 454

Larry HASKINS, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-112.

Supreme Court of Arkansas, In Banc.

Oct. 30, 1978.

Clark, Miller & Switzer, Hot Springs, for appellant.

Bill Clinton, Atty. Gen. by Joyce Williams Warren, Asst. Atty. Gen., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

Under the controlling statute, notice and a hearing are required as conditions to the revocation of a suspended sentence or of probation in a criminal case. Ark.Stat.Ann. § 41-1209(1) (Repl.1977). Under subsection (2) of that statute the hearing "shall be conducted . . . within a reasonable period of time, not to exceed 60 days, after the defendant's arrest." The question here is whether the 60-day limitation is jurisdictional, so that it can be raised for the first time in this court. We hold that the limitation is not jurisdictional.

On November 21, 1977, Haskins, upon a plea of guilty to a charge of battery, was given a 3-year suspended sentence. Eight days later he was arrested for various misdemeanors. He was tried in municipal court on December 13, found guilty, and sentenced to fines totaling $110. On December 29 the State filed a petition for revocation of the suspended sentence. The revocation hearing was held on March 13. Although the record is not clear about what part of Haskins's confinement was due to the municipal court conviction, we will assume that as a result of the petition to revoke the suspension he was confined for more than 60 days before the revocation hearing. In the court below he made no objection to that delay.

The question of jurisdiction of the subject matter is always open. Such jurisdiction cannot be conferred by consent or by waiver. For that reason it may be raised for the first time on appeal. Sugar Grove Sch. Dist. No. 19 v. Booneville Spec. Sch. Dist. No. 65, 208 Ark. 722, 187 S.W.2d 339 (1945). Those are the principles now relied upon by Haskins.

We think it clear that the 60-day limitation was not intended by the legislature to be jurisdictional. The statute refers to "a reasonable period of time, not to exceed 60 days." We cannot believe that the lawmakers meant to define a jurisdictional limitation in terms of reasonableness. If, for example, a period of only 30 days is found to be reasonable in a particular case, does that mean that the court absolutely loses jurisdiction at the end of that time? Surely not. In our opinion the 60-day limitation represents the period beyond which the hearing cannot be delayed if the defendant objects.

There is a solid practical reason why the permissible period should be flexible, not rigid. Motions for the revocation of a suspension or of probation are often, perhaps nearly always, based upon the asserted commission by the defendant of some other offense. (That is the situation here.) We have pointed out that the American Bar Association's "Standards Relating to Probation" recommend that a revocation proceeding based solely upon the commission of another crime not be initiated until after the disposition of the other charge. Hawkins v. State, 251 Ark. 955, 475 S.W.2d 887 (1972). The prosecutor and the defendant himself may prefer that action on the revocation petition, if filed, be deferred until a decision has been reached in the other case. Yet it will frequently be impossible to try that matter within 60 days. Certainly the legislature did not mean that the prosecutor and the defendant are powerless to agree to a deferment beyond 60 days, to the end that the issue underlying the requested revocation not be tried twice. That, however, would unavoidably be the result if the 60 -day limitation is held to be jurisdictional, not to be waived even by consent of the parties. In the case at bar Haskins, by his failure to object, has waived his right to insist that the revocation hearing be held within 60 days.

Affirmed.

HOWARD, J., dissents.

HOWARD, Justice, dissenting.

I am compelled to dissent from the posture taken by the majority in the resolution of the issue raised in this case.

Ark.Stat.Ann. § 41-1209(2) (Repl.1977), in material part, provides as follows:

"A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time, not to exceed 60 days, after the defendant's arrest. . . ." (Emphasis added)

The record before us reflects that appellant was convicted of second degree battery on November 21, 1977, and received a suspended sentence of three years. On November 29, 1977, eight days after he received his suspended sentence, appellant was charged with public intoxication, disorderly conduct, assaulting a police officer and resisting arrest. On December 13, 1977, appellant was fined in the Municipal Court of Hot Springs the sum of $10.00 for public intoxication, $50.00 for disorderly conduct, and $50.00 for assaulting a police officer and resisting arrest. No jail sentence was imposed. Appellant was immediately incarcerated in the Garland County jail where he remained until March 13, 1978, the date of the probation revocation hearing.

Appellant's parole officer filed a violation report on December 19, 1977, and recommended revocation of probation. The State filed a petition to show cause why appellant's sentence should not be revoked on December 29, 1977. A bench warrant was issued for appellant on December 29, 1977, but was not served on appellant until the 23rd day of February, 1978, and his revocation hearing was scheduled for March 13, 1978. Consequently, appellant spent a total of 90 days in the Garland County jail before he received any type of hearing at all relating to his parole violation.

The majority has stated in its opinion that "although the record is not clear about what...