Maddox v. State, 5429
| Citation | 446 S.W.2d 210,247 Ark. 553 |
| Decision Date | 03 November 1969 |
| Docket Number | No. 5429,5429 |
| Parties | Kenneth MADDOX, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Supreme Court of Arkansas |
Garner & Parker, Ft. Smith, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
Appellant brings this appeal from the imposition of a sentence which followed a delayed acceptance of his plea. On December 2, 1968, he appeared with his attorney and entered a plea of nolo contendere to a charge of possession of stolen property. The trial court followed the state's recommendation that the acceptance of appellant's plea be postponed for a period of one year, conditional upon appellant's good behavior. About two months later the appellant was charged with burglary and grand larceny. After conducting evidentiary hearings upon the state's petition to revoke appellant's probation, the court accepted the plea appellant had previously entered and sentenced him to the penitentiary for a period of twelve years with six years suspended.
On appeal the appellant contends that the trial court could not sentence him for more than one year when the court accepted his plea during this probationary period. Appellant urges that since the acceptance of his plea was postponed for a period of one year, based upon his good behavior, it follows that his sentence could not exceed one year. Appellant cites Ark.Stat.Ann. § 43--2324 (Repl.1964) and Canard v. State, 225 Ark. 559, 283 S.W.2d 685 (1955). Appellant relies upon that part of the above cited statute which reads:
'* * * 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.'
We cannot agree with appellant. He overlooks the first part of this statute which reads:
'Whenever, in criminal trials in all courts of record, a plea of guilty shall have been accepted * * *, 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.'
Thus, it is readily seen that the legislature has provided that whenever a plea is accepted, the trial court has the authority to impose a suspended sentence. We perceive no language in this statute nor in any case cited to us that limits the power and the discretion of the trial court to delay the acceptance of a plea. In the case at bar we cannot say that one year is an unreasonable length of time to defer acceptance of a plea. We cannot accept the argument of the appellant that his one-year probation before accepting his plea amounted to a sentencing of one year within the meaning of § 43--2324. Nor do we construe this procedure to be an invasion of any of his constitutional rights.
In the case at bar the postponement of acceptance of appellant's plea for a period of one year was on the recommendation of the state with the approval of the appellant and his attorney. The trial court clearly detailed the conditions and benefits of probation in writing. The appellant was advised that upon his good behavior for a year, the charge of stolen property would be dismissed pursuant to the agreement with the prosecuting attorney. The court thoroughly explained to the appellant, who is 32 years of age, the benefits of not having a record of a felony conviction. It was outlined to the appellant how a felony conviction would result in tainting his future and his citizenship rights. The conditions of his probation were in the form of a letter which appellant read and signed in the presence of his attorney acknowledging that he understood and accepted the conditions. Should we accept appellant's argument we would circumscribe and severely handicap our trial judges in their efforts to determine when their trust and compassion should be exercised for the ends of justice and the best interest of the public as well as the defendant. The future of deserving individuals, especially youthful offenders, who come before our sentencing courts should not be jeopardized by such a narrow construction as urged by the appellant. Nor do we agree with the appellant that the sentence imposed is excessive since it exceeded one year. The sentence was within the statutory limits which are from 1 to 21 years. § 41--3938 (Repl.1964).
Appellant also contends that the judgment is contrary to the evidence and, therefore, the trial court abused its discretion in granting the petition to revoke appellant's probation. We cannot agree. Appellant's one-year probation was given to him on December 2, 1968 upon condition of good behavior. The written conditions of his probation provided in part:
At the evidentiary hearings, the state adduced proof that on the night of December 2nd a local motel was burglarized and two color television sets were stolen from it. A twenty-year-old boy testified that he perpetrated this alleged offense after it was planned the night before by the appellant and himself. The manager of a nearby nightclub or private club testified that he is an ex-convict and that appellant was a patron and member of the club. He related that on the night of the alleged burglary of the motel and theft of the color television sets, the appellant and this twenty-year-old boy approached him at the club about a loan of $50 upon a television set. He said that he loaned $35 to them and received as security a black and white television set. This set had been recently stolen. He further testified that following this transaction, the appellant approached him about purchasing a color television set for $150 and that both the appellant and the boy told him there were two color sets for sale. Another witness, who worked for the club manager, stated that appellant and this boy were present in the club that night and the young boy approached her about buying a color television set. The next day these color sets were discovered in the boy's car by his parents and they took him and the property to the police. The appellant denied complicity.
The appellant argues that the testimony of the individuals who implicated him is insufficient and uncorroborated and that the court grossly abused its discretionary powers in the revocation of appellant's probation.
In Calloway v. State, 201 Ark. 542, 145 S.W.2d 353 (1940) we approved the rule that:
'The behavior of the defendant is a question of law to be passed on by the court, and the exercise of its discretion in this matter cannot be reviewed in the absence of gross abuse.'
See, also, Gross v. State, 240 Ark. 926, 403 S.W.2d 75 (1966) and Smith v. State, 241 Ark. 958, 411 S.W.2d 510 (1967).
In the case at bar we are of the view that the court did not abuse its discretionary powers in the revocation of appellant's probation.
Affirmed.
I disagree with the majority for two reasons: (1) The history of the statute and the prior constructions given thereto by this Court are contrary to the decision of the majority, and (2) The effect of the majority decision permits a trial court to convict and sentence a defendant without the benefit of a jury trial for the second offense and also leaves the defendant in the position of being subsequently prosecuted for the same offense and given another sentence--i.e., the subsequent revocation of the suspension violates both the man's constitutional right to a jury trial and his constitutional rights against double jeopardy.
In the case of Spears v. State, 194 Ark. 836, 109 S.W.2d 926 (1937), Spears entered a plea of guilty to larceny at which time the Court made this order: 'Whereupon the Court doth order that the judgment rendered herein be and the same is hereby suspended during good behavior and payment of the Court cost in this suit, the Court retaining jurisdiction for all purposes until the next term of this Court.' This order was entered at the July term of 1934, and no further action was taken against him until July 19, 1937, at which time the prosecuting attorney filed a petition praying that the suspended sentence be set aside. Upon a hearing the suspended sentence was set aside and appellant was sentenced to the penitentiary. In holding that the trial court did not lose jurisdiction by the elapsing of the term of court we said:
'Appellant's first contention is based upon language used in Hartley v. State, 184 Ark. 237, 42 S.W. (2d) 7, where it was said: It is contended here that there was a limitation fixed in the order suspending the sentence, that is, until the next term of court, and that after the next term, the court lost jurisdiction to change the order.
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