Tate v. State
| Decision Date | 19 May 1975 |
| Docket Number | No. CR,CR |
| Citation | 524 S.W.2d 624,258 Ark. 135 |
| Parties | David H. TATE, Appellant, v. STATE of Arkansas, Appellee. 75--8. |
| Court | Arkansas Supreme Court |
R. W. Laster, Little Rock, for appellant.
Jim Guy Tucker, Atty. Gen., by Gary Isbell, Asst. Atty. Gen., Little Rock, for appellee.
Appellant asks us to reverse his conviction of three violations of Act 590 of 1971 (Ark.Stat.Ann. § 82--2601--2638 (Supp.1973)), as amended, upon three grounds:
I
That the defendant was denied a fair trial and due process of law as contemplated by the Fourteenth Amendment of the United States Constitution.
II
The court erred in consolidating three separate offenses for trial.
III
The court erred in sentencing the defendant contrary to Ark.Stat.Ann. § 43--2301 et seq.
We shall treat them in the order stated.
Appellant states that a cursory reading of the transcript reveals no glaring errors, but begs that we examine the entire record, saying that the accumulated errors apparent in the record show that there is a serious question of due process of law as contemplated by the Fourteenth Amendment to the United States Constitution. Yet they are not apparent enough for appellant's experienced, employed counsel to point out any of them to us, unless we should find error in the two remaining points. It is not the function of this court to conduct any such search for error as that suggested here. Not only would such a review be wasteful of judicial resources, but it would deprive the state of any means of advocating its position on discovered error. There is no merit in this point.
This ground is asserted as one of the accumulated errors to which appellant makes reference in his argument under Point I. Yet, he admits that no objection was made by the public defender, who was appellant's trial counsel. The three clarges were made in three separate informations. Each information charged appellant with delivery of a controlled substance, heroin, but on different dates, i.e., on the 22nd, 23rd and 24th days of January, 1974. Jury trial was waived, and the three cases were consolidated for trial by specific agreement. This was obviously a tactical decision, which might have redounded to the benefit of appellant. All three cases had been set for trial before the circuit judge on the same day. The same witness testified that he had purchased heroin from appellant on the three different days. It does not seem to us that appellant had much to lose by the consolidation. It does seem that the public defender, an experienced lawyer in defending criminal cases, tried to gain some advantage from the consolidation by pointing out that the narcotics officer who testified he had made the three separate purchases from appellant, could remember the names of the officers who had him under surveillance at the time two of the purchases were allegedly made, but could not remember who was the surveillance officer on the third occasion. We are unwilling to find error on this record.
Appellant argues here that his sentencing was not in conformity with the provisions of Ark.Stat.Ann. § 43--2301 (Supp.1973) and § 43--2303 (Repl.1964). Specifically, he contends that the circuit judge did not advise appellant of his right to appeal and failed to fix or deny bond on appeal. Timely appeal was taken, so appellant has not been prejudiced by the failure of the court to advise him of that right. The court did remand appellant into the custody of the sheriff at the conclusion of the trial, which is one of the options available under § 43--2301. Furthermore, after notice of appeal had been given, the court admitted appellant to bail, as soon as a motion to fix bail was presented. We find no prejudice here, if indeed, the court's ordering appellant into the custody of the sheriff without expressly stating that he was denied bond was not a strict compliance with the statute.
The record does disclose that appellant was not accorded the right of allocution and that the public defender had been appointed to represent him upon a showing of indigency. Nothing in the record discloses that appellant remained incarcerated from the time of his initial arrest until his trial, or that, if he did so, it was solely on account of his indigency. He simply complains that § 43--2303 was not followed, but does not suggest what he could or would have advanced as a cause for the sentence not being imposed if he had been accorded that right, until his reply brief in which he says that he was incarcerated from April 4, 1974, when he was arrested, until trial.
The record discloses that when bench warrants were ordered on the informations filed, bail was fixed at $5,000 on each charge. An appeal bond with personal sureties in the penal sun of $15,000 was made. We cannot assume that indigency was the sole reason for these or other sureties being unwilling to serve as bail for appellant at an earlier date. Neither can we confirm the statement as to the period of incarceration. There was testimony that appellant was originally arrested April 4, 1974. Bench warrants were dated May 20, 1974. The returns on them show that appellant was arrested on May 23. We cannot say that the failure to follow [258 Ark. 138-A] the statute was...
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Collins v. State
...new trial or for arrest of judgment. Ark.Stat.Ann. § 43-2304 (Repl.1964). Denial of the right of allocution is error. Tate v. State, 258 Ark. 135, 524 S.W.2d 624, 726 (opinion on rehearing). The trial court has power to modify any unexecuted sentence and its own judgment at any time during ......
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