Lovett v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: HOWARD
• Citation: Lovett v. State, 267 Ark. 912, 591 S.W.2d 683 (Ark. App. 1979)
• Decision Date: 12 December 1979
• Docket Number: No. CA,CA
• Parties: Sophocles LOVETT, Appellant, v. STATE of Arkansas, Appellee. CR 79-22.

Page 683

591 S.W.2d 683

267 Ark. 912

Sophocles LOVETT, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 79-22.

Court of Appeals of Arkansas.

Dec. 12, 1979 Released for Publication by the Court of Appeals Jan. 9, 1980.

Gibson & Gibson by Robert B. Gibson, Sr., Dermott, for appellant.

Steve Clark, Atty. Gen. by Robert R. Ross, Deputy Atty. Gen., Little Rock, for appellee.

HOWARD, Judge.

Appellant was convicted on April 5, 1979, by a jury, of criminal attempt to commit rape. The jury assessed a fine of $500.00.

Appellant asserts two points for reversal:

1. The trial court erred in not entering a judgment on the jury's verdict prior to July 30, 1979 116 days after appellant's conviction.

2. That the trial court erred in ruling that appellant could not introduce evidence relating to an abortion performed on the victim.

Appellant argues that although he was convicted of the charge filed against him on April 5, 1979, the trial court did not enter a judgment on the verdict until July 30, 1979; that appellant filed his notice of appeal on May 1, 1979, and that appellant, at the time, "was not aware that judgment had not been entered, until after the filing or lodging of the Transcript with the Arkansas Court of Appeals"; and that as a matter of law, there was no judgment from which an appeal could be properly taken. Therefore, argues appellant, the case should be reversed, dismissed and appellant reimbursed of his costs of $714.70.

Rule 36.4 of the Rules of Criminal Procedure provides:

Upon the return of a verdict of guilty, if tried by a jury, or the finding of guilty if tried by a circuit court without a jury, sentence May be pronounced and the judgment of the court May be then and there entered, or sentencing and the entry of the judgment May be postponed to a date certain then fixed by the court, not more than thirty (30) days thereafter, . . . (Emphasis added)

While Rule 36.4 makes it clear that the sentencing of a defendant and the entry of the judgment May be pronounced immediately, or postponed to a date certain fixed by the court, not more than thirty (30) days thereafter, there is no provision indicating that a failure to observe this stipulation in any way affects the validity of the proceedings resulting in the conviction of a defendant. Furthermore, the word "may" as used in the rule implies permissive or discretional, rather than mandatory, action; and it is construed in a permissive sense unless it can be said that when the provision of a statute is the essence of the thing required to be done, it is mandatory, otherwise, when it relates to form and manner, and where an act is incident, after jurisdiction is acquired, it is directory merely. Nathan v. State, 235 Ark. 704, 361 S.W.2d 637 (1962); Dunn v. Dunn, 222 Ark. 85, 257 S.W.2d 283 (1953). It is plain that Rule 36.4 is directory rather than mandatory.

Moreover, appellant has not shown in any way how he has been inconvenienced or prejudiced by the belated...