Rogers v. State, CA
| Decision Date | 16 November 1983 |
| Docket Number | No. CA,CA |
| Citation | 10 Ark.App. 19,660 S.W.2d 949 |
| Parties | Lois ROGERS, Appellant, v. STATE of Arkansas, Appellee. CR 83-60. |
| Court | Arkansas Court of Appeals |
Murphy & Carlisle by Marshall Carlisle, Fayetteville, for appellant.
Steve Clark, Atty. Gen. by Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.
In this criminal case, the appellant was charged with possession of a controlled substance with intent to deliver. The appellant was also charged as an habitual criminal who had been convicted of more than two felonies. After waiving a jury trial, the appellant was tried by the court, found guilty, and sentenced to eight years in the Arkansas Department of Correction. From that decision, comes this appeal.
Pursuant to a search warrant, several Johnson County deputy sheriffs searched a residence, surrounding grounds, and out buildings. During the course of the search, they found several marijuana plants growing outside the residence, and other marijuana located in various containers and within the residence. At the time the search was conducted, the appellant was not present. The officers testified that they left a copy of the search warrant on the kitchen table inside the residence. Sometime later, the appellant was found on the premises, and he was arrested.
For reversal, the appellant argues that the evidence obtained pursuant to the search warrant should have been suppressed because the officers failed to comply with Rule 13.3(b) of the Arkansas Rules of Criminal Procedure. That rule requires that, where the premises to be searched are unoccupied by any person in apparent control, the officers shall leave a copy of the warrant affixed to the premises. The appellant also argues that, because he was not served with a copy of the warrant when he was arrested, the evidence seized should have been suppressed. We find no merit to this argument. Rule 13.3(b) and (d) deal with the problem of an unoccupied place which is to be searched and merely provides that, in that event, a copy of the search warrant and return are to be "affixed" to the premises. The trial court, after hearing the witnesses, found that the officers had, in fact, "affixed" the warrant and return to the premises by leaving copies of them on a table inside the premises. The appellant claimed he did not see the warrant or return, but the trial court found the officers' method of affixing the warrant and return to the premises to be reasonable. We agree with the trial court that this manner of affixing the warrant and return was reasonable, complied with Rule 13.3(b) and (d), and the Fourth Amendment to the United States Constitution. The search was not an unreasonable one by virtue of the manner of affixing the warrant to the premises. Further, we find that the appellant's reliance on Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978) is misplaced. It is enough to say that in Harris there were numerous defects which the majority found to warrant suppression, even though the court noted that none of the defects, standing alone, were sufficient to justify suppression of the evidence seized. No accumulation of defects is present in the case at bar, and, in fact, we find no defect at all in the manner in which the officers affixed the warrant and return to the premises.
Secondly, the appellant argues that the trial court, in considering the provisions of the habitual offenders statute mandatory, erred in determining that eight years was the minimum prison sentence it could impose on the appellant. We find no merit to this argument. The trial court indicated that, having heard all the evidence and finding the appellant guilty, it felt it had no choice but to sentence the appellant. This statement by the trial court does not clearly indicate that the court refused to consider the alternative fine provisions and considered a sentence to imprisonment as the only option it had. We believe the trial court exercised its discretion, and simply meant that, based on the appellant's prior record, and the facts of the case at bar, it had no choice, considering its duty, but to sentence the appellant to imprisonment. Secondly, we believe the trial court was correct in determining that, having decided to sentence the appellant to prison, eight years was the minimum sentence which could be imposed. Certainly the appellant is correct in pointing out that Ark.Stat.Ann. §§ 41-901, 1101, and 1001, all use the permissive word "may" in defining sentences which are available for various classes of crimes. The use of the word "may" however, does not mean that in all habitual offender cases, both the provisions of Ark.Stat.Ann. § 41-901 and Ark.Stat.Ann. § 41-1001 are available, and that the court is required to choose from those two statutes. The sentences for habitual offenders are governed by Ark.Stat.Ann. § 41-1001, and the simple explanation is...
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Jones v. State of Ark.
...sentence ranges for a term of years generally are higher under section 41-1001 than under section 41-901. See Rogers v. State, 10 Ark.App. 19, 660 S.W.2d 949, 951 (1983). For a class Y felony under the general sentencing statute, the authorized term of years is from ten to forty years, whil......
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Bunch v. State
...was a matter within the trial court's discretion. Realizing its error, the court of appeals overruled Mathis in Rogers v. State, 10 Ark.App. 19, 660 S.W.2d 949 (1983). This court has very clearly stated on several occasions that sentencing under the recidivist statute is mandatory, not opti......
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Nelson v. Lockhart, PB-C-85-39.
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