Washington v. State, CR
| Decision Date | 13 December 1982 |
| Docket Number | No. CR,CR |
| Citation | 643 S.W.2d 255,278 Ark. 5 |
| Parties | Floyd WASHINGTON, Appellant, v. STATE of Arkansas, Appellee. 82-108. |
| Court | Arkansas Supreme Court |
William R. Simpson, Jr., Public Defender and Howard W. Koopman, Chief Deputy Public Defender by Carolyn P. Baker, Deputy Public Defender, Little Rock, for appellant.
Steve Clark, Atty. Gen. by Velda P. West, Asst. Atty. Gen., Little Rock, for appellee.
This is the second time this case has been before us. The first time the conviction of appellant, Floyd Washington, was reversed and remanded in Washington v. State, 271 Ark. 420, 609 S.W.2d 33 (1980) (hereinafter Washington I). There, we held that the trial court erred in admitting one of appellant's prior convictions for sentence enhancement purposes. Upon retrial, appellant was again convicted of aggravated robbery and sentenced as a habitual offender to life imprisonment and a $15,000 suspended fine. Appellant now argues that the trial court erred by failing to follow the law established in the first case regarding the use of prior convictions for sentence enhancement purposes. On appeal we affirm.
In Washington I, the crime for which appellant was on trial was committed on June 8, 1979. In that case two prior convictions were introduced for sentence enhancement purposes:
Date of Commission Date of
------------------ ----------------
Crime of Crime Conviction
-------------- ------------------ ----------------
(1) Robbery February 1, 1974 May 13, 1974
(2) Aggravated
Robbery June 14, 1979 December 5, 1979
On appeal, we held that the introduction of the December 5, 1979 prior conviction was error, stating that the conviction date of the prior offense (December 5, 1979) must precede the date of commission of the principal offense (June 8, 1979) in order for the prior offense to be admissible for enhancement purposes.
Then, in the subsequent cases of Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981) and yet another Floyd Washington case, Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981) (hereinafter Washington II), we reversed our ruling in Washington I and held that any prior conviction was admissible for sentence enhancement purposes, stating that the time of conviction in relation to the principal offense was irrelevant.
After our Washington II decision, Washington I came up for retrial. On retrial our rule in Washington I was not followed. Although a different prior conviction was substituted for the erroneous one used in Washington I, it too was one in which the date of conviction did not precede the date of the commission of the principal offense.
Appellant now argues that the law as established in Washington I, although erroneous under Conley and Washington II, should have been followed because of the doctrine of the law of the case. We do not agree.
The doctrine of the law of the case is that the decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review. Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919). However, it is not an inflexible doctrine; it does not absolutely preclude correction of error. Ferguson v. Green, 266 Ark. 556, 557, 587 S.W.2d 18 (1979). The doctrine of law of the case is inapplicable where, as here, during the interim between our decision in Washington I and retrial, we correctly set forth the applicable law in Conley and Washington II and this case law was followed on retrial.
Affirmed.
I dissent because I believe the law of the case is controlling. Up until the majority opinion in this case we had not created any exceptions to this rule and I cannot see the necessity of doing so at this time. We have, in effect, given our word that this case would be tried upon the theory that the enhancement provisions of the Habitual Criminal Act would not be applicable to the case before us as to convictions where the offense was committed prior to the offense of the principle case. Now this court is going back on its word and saying we are not going to do what we said we would do.
In Washington v. State, 271 Ark. 420, 609 S.W.2d 33 (1980), we decided that the Habitual Criminal Act was based upon the theory that a persistent offender warranted an increase in the punishment for the offense because he had not been deterred by previous convictions and punishment. We flipflopped in the case of Conley v. State, 272 Ark. 33, 612 S.W.2d 722 (1981). In Conley, we decided that we would allow any prior convictions of an accused to be used...
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Ruiz v. State, CR
... ... State, 296 Ark. 41, 64-5, [299 Ark. 155] 754 S.W.2d 518, 529-30 (1988); O'Rourke v. State, 295 Ark. 57, 63-4, 746 S.W.2d 52, 55-6 (1988). Nor are the appellants entitled to preserve in place a principle of law which has been held to be erroneous. See Washington v. State, 278 Ark. 5, 643 S.W.2d 255 (1982); United States v. Sager, 743 F.2d 1261 (8th Cir.1984) ... We reject, as well, the argument that the state failed to prove the existence of the aggravating circumstances. The circumstances of the crimes and the testimony of David Small ... ...
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State v. Harrison
...establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review.” Washington v. State, 278 Ark. 5, 7, 643 S.W.2d 255, 256 (1982) (citing Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919)). The doctrine prevents an issue rais......
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Kemp v. State
... ... The doctrine of the law of the case provides that the "decision of an appellate court establishes the law of the case for the trial upon remand and for the appellate court itself upon subsequent review." Washington v. State, 278 Ark. 5, 7, 643 S.W.2d 255 (1982) (citing Mayo v. Ark. Valley Trust Co., 137 Ark. 331, 209 S.W. 276 (1919)). Although we noted in Washington that the doctrine is not inflexible and does not absolutely preclude correction of error, id. (citing Ferguson v. Green, 266 Ark. 556, 557, ... ...