Redding v. State, CR73--16
| Decision Date | 23 April 1973 |
| Docket Number | No. CR73--16,CR73--16 |
| Citation | 254 Ark. 317,493 S.W.2d 116 |
| Court | Arkansas Supreme Court |
| Parties | Henry Allen REDDING, Appellant, v. STATE of Arkansas, Appellee. |
L. K. Collier, Rice L. Van Ausdall, Harrisburg, for appellant.
Jim Guy Tucker, Atty. Gen., by Frank B. Newell, Deputy Atty. Gen., Little Rock, for appellee.
By information the appellant was accused of the crime of robbery with the use of a firearm. A jury found the appellant guilty of robbery and assessed his punishment at three years imprisonment in the state penitentiary. Also, an additional three years was imposed by the jury for the use of a firearm. The trial court ordered the sentences to run consecutively. For reversal the appellant contends that Ark.Stat.Ann. § 43--2336 to 43--2338 (1971 Supp.), our 'firearm statute,' is unconstitutional. The statute permits a separate appeal from the judgment on the use of a firearm and it is only from this part of the judgment that the appellant appeals. In pertinent part § 43--2336 reads:
'* * * (A)ny person convicted of any offense, which is now, or may hereafter be, classified by the laws of this State as a felony, and the person so convicted employed any firearm of any character as a means of committing or escaping from said felony, may, in the discretion of the sentencing court, be subjected to an additional period of confinement in the State penitentiary for a period not to exceed seven (7) years. * * *'
§ 43--2337 provides that any additional sentence shall run consecutively.
In Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970), we set aside that portion of the trial court's judgment which added a seven year penalty for the use of a firearm in robbery. We found that necessary because of two procedural defects: (1) the use of a firearm was not alleged in the information and (2) the court made an independent determination as to the use of the firearm and then added a seven year sentence to the 15 year sentence the jury had imposed. Therefore, we said appellant was deprived of his constitutional right to be informed of the nature of the accusation against him as well as the right of trial by jury.
In the case at bar these procedural defects do not exist. The trial court first, by standard instructions, submitted to the jury the robbery issue and a verdict form as to the guilt or innocence of the defendant of the crime of robbery. After the jury returned a verdict of guilty, the trial court then submitted to the jury a verdict from authorizing the jury to assess a penalty (3 to 21 years, § 41--3602) for the crime of robbery. At the same time the court instructed the jury 'that if you find beyond a reasonable doubt that the robbery was committed through the use of a firearm, you may, in your discretion, assess an additional penalty not to exceed seven (7) years.' A verdict form was, also, submitted authorizing the jury, in its discretion, to assess additional punishment (0 to 7 years, § 43--2336) for the use of a firearm. The jury as previously indicated, assessed a penalty of three years for robbery and a separate or additional sentence...
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...v. Ingram, 215 Ark. 812, 223 S.W.2d 595. The next is that a presumption of constitutionality attends every such act. Redding v. State, 254 Ark. ---, 493 S.W.2d 116 (1973); Bush v. Martineau, 174 Ark. 214, 295 S.W. 9. All doubt must be resolved in favor of constitutionality. Redding v. State......
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...of Arkansas Code Annotated § 5–73–103 (Repl.2005). See Cotton v. State, 256 Ark. 527, 508 S.W.2d 738 (1974); Redding v. State, 254 Ark. 317, 493 S.W.2d 116 (1973); Johnson v. State, 249 Ark. 208, 458 S.W.2d 409 (1970). Further, under the relevant sentencing statute, Arkansas Code Annotated ......
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