Smith v. State

• Decision Date: 22 April 1974
• Docket Number: No. CR,CR
• Citation: 508 S.W.2d 54,256 Ark. 425
• Parties: Moses SMITH, Appellant, v. STATE of Arkansas, Appellee. 74-5.
• Court: Arkansas Supreme Court

Page 54

508 S.W.2d 54

256 Ark. 425

Moses SMITH, Appellant, v. STATE of Arkansas, Appellee.

No. CR 74-5.

Supreme Court of Arkansas.

April 22, 1974.

Robert A. Newcomb, Pine Bluff, for appellant.

Jim Guy Tucker, Atty. Gen., by O. H. Hargraves, Deputy Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Moses Smith was charged with the crime of murder in the first degree by information filed June 3, 1970. After having been found guilty of murder in the second degree by a jury on June 28, 1971, he was sentenced to 17 years in the penitentiary. Commitment was issued on June 29, 1971. On February 9, 1973, Circuit Judge John Goodson received a handwritten 'Motion for Recovery of Jail Time Pursuant to Chapter 12, Section 153, Page 112, Paragraph 3, Arkansas Criminal Procedure Manual.' In it Smith sought to be credited with 393 days spent in jail prior to his being sentenced, alleging that he was incarcerated from June 2, 1971, to June 28, 1972. This motion was denied by the circuit judge on March 22, 1973, without a hearing. Of course, the circuit court had no jurisdiction to alter the sentence, after appellant had been committed and entered upon its execution. Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005. In the order, the circuit court specifically found that time for which credit was sought was time spent in jail prior to determination of guilt rather than prior to pronouncement of sentence and that all delays in the period before trial were at the request of Smith, 'including the exemption for legislative immunity of his employed counsel.'

On October 19 1973, appellant, proceeding more appropriately, filed a motion to vacate his sentence under Criminal Procedure Rule No. 1. He was represented in this proceeding by the designated Attorney for Inmates at the Arkansas Department of Corrections. In this motion, he alleged that he was arrested on June 2, 1970, and remained in custody until June 28, 1971, when he was sentenced for the full 17-year term fixed by the jury. He asserted that the failure to give him credit for the time he spent in jail, without bond, awaiting trial, violated his rights under the Constitution of the United States. This motion was denied by a different circuit judge who presides over the Second Division of the Circuit Court of Clark County, Arkansas, on October 22, 1973, also without a hearing. The court found, and the record discloses, that the period of incarceration was that alleged in the second motion. This judge held that giving credit for jail time amounts to a reduction in sentence and lies within the sound discretion of the court, and that there had been no 'allegation or offer' that the court had abused its discretion. The court gave no consideration to appellant's contention that failure to give him credit for time he was incarcerated while awaiting trial violated the 'due process' and 'equal protection' clauses of the Fourteenth Amendment to the United States Constitution.

No doubt the circuit judge who denied relief under Criminal Procedure Rule No. I was acting with some justification, in reliance upon our statute digested as Ark.Stat.Ann. § 43--2813 (Supp.1973) and our decisions in such cases as Harper v. State, 249 Ark. 1013, 462 S.W.2d 847, and Kimble v. State, 246 Ark. 407, 438 S.W.2d 705. See also, Shelton v. State, 255 Ark. --- 504 S.W.2d 348 (1974).

We do not seem to have given any direct treatment, however, of the constitutional question posed when an indigent is held in jail without bond pending trial. Our statute does not appear to be unconstitutional upon its face. It has long been recognized, apparently without question, that, in the absence of a statute providing otherwise, the allowance of credit for this time is discretionary with the trial court. 24B C.J.S. Criminal Law, § 1995(5), p. 644. See also, Gross v. Sarver, 307 F.Supp. 1105 (D.C.Ark.1970). But if the statute is applied in a manner which denies equal protection of the laws or due process of law to an indigent, the application might well be in violation of the Fourteenth Amendment to the United States Constitution. See Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). While we may be soon called upon to determine whether such an application of the statute does violate these constitutional provisions, this case cannot afford the vehicle for a definitive holding on this question, for reasons hereafter stated.

The United States Supreme Court has not treated the question directly. Although we need not speculate upon that court's answer whenever it is directly confronted with the question, we find several decisions of that court which seem unequivocally to point the way to the proper approach to the constitutional issues.

First, there are the cases requiring that, in order to meet Fourteenth Amendment due process and equal protection demands, indigent defendants must be afforded review as adequate and effective as that given one financially able by providing free transcripts and other means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055 (1956); Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).

Following Griffin, the United States Supreme Court held that refusal of access to the courts for relief by appeal or petition for habeas corpus by reason of inability of an indigent prisoner to pay filing fees was a denial of equal protection of the laws to them. Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). In Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966), it was held that once avenues of appellate review have been established by a state, they must be kept free of unreasoned distinctions that would impede open and equal access to the courts by indigents.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), the court held that the Sixth Amendment right to counsel was so fundamental and essential to a fair trial that it was made obligatory upon the states by the Fourteenth Amendment, overturning the decision in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1945), that refusal to appoint counsel for an indigent defendant did not necessarily violate the due process clause of the Fourteenth Amendment. On the same day Gideon and Draper were decided, the court handed down its opinion in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), reh. denied 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200 (1963), in which it was held that failure to appoint counsel for an indigent on an appeal, granted as a matter of right, constituted an invidious discrimination and denial of due process in violation of the Fourteenth Amendment.

Then there are the cases in which imprisonment of indigent persons has been held to violate the Fourteenth Amendment whenever it results from financial inability of the indigent to pay fines or court costs. In Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), it was held that continuing an indigent person in custody beyond the maximum statutory term for the offense for which he was committed because of his involuntary failure, due solely to his indigency, to satisfy monetary portions of his sentence constituted impermissible discrimination resting on ability to pay and violated the equal protection clause. Subsequently, in Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the court held that imprisonment of one punished only by fine solely because of his inability to pay the fine due to indigency was also a violation of the equal protection clause.

The basic purpose of the United States Supreme Court in these cases finds expression in Williams v. Illinois, supra, where the court, speaking through Chief Justice Burger, said:

In the years since the Griffin case the Court has had frequent occasion to reaffirm allegiance to the basic command that justice be applied equally to all persons. Subsequent decisions of this Court have pointedly demonstrated that the passage of time has heightened rather than weakened the attempts to mitigate the disparate treatment of indigents in the criminal process.

Every instance, in which a statute or its application works an invidious discrimination by visiting different consequences upon two categories of persons solely because of one's financial inability has resulted in a finding that the Fourteenth Amendment had been violated. We find nothing in McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973), which dilutes the impact of prior decisions based upon disparity of treatment of the rich and the poor.

The principles leading to these results have been applied in many courts to require that pretrial confinement be credited upon a sentence imposed on conviction, where the person sentenced was without the means to provide bail in a reasonable amount. See, e.g., Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973). These standards and requirements vary from jurisdiction to jurisdiction and are sometimes based upon statutes.

We can agree with appellant that there is no rational basis for distinguishing between a prisoner who is forced to remain in prison after completion of his sentence because of indigency and one who must remain in jail prior to his trial solely because of indigency. Financial inability to post bond should not cause an indigent to spend more time in confinement than one whose wealth enables him to be admitted to bail. Denial of credit for pretrial custody necessitated by financial inability to make bail has been held violative of the equal protection clause of the ...