Rowe v. State, CR

• Decision Date: 25 January 1982
• Docket Number: No. CR,CR
• Citation: 275 Ark. 37,627 S.W.2d 16
• Parties: Rodney Lee ROWE, Petitioner, v. STATE of Arkansas, Respondent. 80-99.
• Court: Arkansas Supreme Court

Page 16

627 S.W.2d 16

275 Ark. 37

Rodney Lee ROWE, Petitioner, v. STATE of Arkansas, Respondent.

No. CR 80-99.

Supreme Court of Arkansas.

Jan. 25, 1982.

Lessenberry & Carpenter by Thomas M. Carpenter, Little Rock, for petitioner.

Steve Clark, Atty. Gen. by Alice Ann Burns, Asst. Atty. Gen., Little Rock, for respondent.

PER CURIAM.

Petitioner Rodney Lee Rowe was convicted in the Circuit Court of Pulaski County of attempted capital murder, Ark.Stat.Ann. § 41-701, 1501 (Repl.1977), and aggravated robbery, Ark.Stat.Ann. § 41-2102 (Repl.1977). We affirmed. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980). Petitioner received a sentence of ten years imprisonment for aggravated robbery and thirty years imprisonment for attempted capital murder. The trial court ordered the sentences served consecutively. Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. He specifically asks that a hearing be held in circuit court to determine whether a line-up identification procedure in the case was conducted in violation of petitioner's rights under the Fifth and Fourteenth Amendments to the United States Constitution and Article II § 10 of the Arkansas Constitution. He also asks that this Court modify his sentence or direct the circuit court to correct the sentence on the grounds that it is illegal to enter a judgment of conviction on attempted capital felony murder and aggravated robbery when the aggravated robbery was the underlying specified felony to the charge of attempted capital murder.

The issue of the line-up identification was considered on appeal and decided adversely to petitioner. The matter cannot be raised in a petition for postconviction relief. Rule 37 was not intended as a means of again presenting questions which were settled on direct appeal. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).

The question of legality of the sentences imposed on petitioner was also considered on direct appeal, but on a different ground than those presented in this petition. On appeal, petitioner alleged that the acceptance of the jury verdict violated the constitutional prohibition against double jeopardy and Ark.Stat.Ann. § 41-105(1)(e) (Repl.1977) which provides that a defendant may not be convicted of more than one offense if his conduct constitutes an offense defined as a continuing course of conduct and is uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses. This Court rejected that argument because it was found that two distinct impulses instigated the aggravated robbery and the attempted murder. Furthermore, it was noted that no objection had been made at trial to the charges or the sentences, thus precluding the argument from being considered for the first time on appeal.

Petitioner now submits that the failure to object at trial should not preclude relief under Rule 37 because the trial court did not have the authority under Rule 37.1(b) to impose the sentences since they are in excess of the maximum sentence allowed by law. Petitioner cites as support for his contention this Court's decisions in Singleton v. State, 274 Ark. 126, 623 S.W.2d 180 (1981); Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (1981); and Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981). In these cases, we held that when a criminal offense by definition includes a specified lesser offense, a conviction cannot be had for both offenses under Ark.Stat.Ann. § 41-105(1)(a) (Repl.1977). The statute provides:

(1) When the same conduct of a defendant may establish the commission of more than one...