Watson v. State
| Decision Date | 13 September 2000 |
| Docket Number | 99-1434 |
| Citation | 26 S.W.3d 588 |
| Parties | Albert J.M. "John" WATSON v. STATE of Arkansas CA CR 99-1434 ___ S.W.3d ___ Opinion delivered |
| Court | Arkansas Court of Appeals |
Appeal from Sharp Circuit Court; Harold S. Erwin, Judge; affirmed as modified.
1. Statutes -- construction of criminal statutes -- repeal by implication. -- On appellate review, the court construes criminal statutes strictly, resolving any doubts in favor of the defendant; nothing is taken as intended that is not clearly expressed; although the repeal of prior statutory provisions by implication is not favored, when the later act covers the subject matter of the previous one and adds provisions clearly showing that it was intended as a substitute for the former provision, the older provision is repealed by implication; where two statutes do not conflict, one does not repeal the other by implication; all statutes relating to the same subject matter must be construed together.
2. Criminal law -- Ark. Code Ann. §§ 5-4-103 & 16-90-120 -- no conflict found. -- Where Ark. Code Ann. § 5-4-103 (Repl. 1997) required a jury to fix punishment for a crime and section 16-90-120 (1987) permitted the sentencing court to enhance the sentence if the defendant utilized a firearm in the commission of a felony, the statutes spoke to two different issues, and the legislature, upon enacting section 5-4-103, did not expressly overrule or repeal section 16-90-120, the appellate court found that these two statutes did not conflict and could be read harmoniously; therefore, section 5-4-103 did not repeal section 16-90-120.
3. Statutes -- Ark. Code Ann. § 16-90-120 -- meaning of term "sentencing court." -- The legislature's use of the words "sentencing court" as found in Ark. Code Ann. § 16-90-120 was intended by the legislature to refer either to the judge or the jury; the factual issue as to the use of a firearm is to be determined by the trial court if a jury is waived and otherwise by the jury.
4. Criminal law -- jury was sentencing court -- judge without authority to enhance sentence. -- Where the jury found that appellant had used a firearm in committing second-degree murder, but the record did not reflect that he had been charged with using a firearm, and it was the judge and not the jury that enhanced appellant's sentence, but the judge was not the sentencing court because appellant was tried by a jury, the judge was without authority to enhance appellant's sentence.
5. Appeal & error -- conviction affirmed as modified. -- Appellant's conviction was affirmed, but the appellate court modified his sentence by removing the additional fifteen years imposed by the judge, leaving intact the twenty-year sentence and $15,000 fine imposed by the jury for appellant's conviction on the charge of second-degree murder. [cme]
G. Keith Watkins, for appellant.
Mark Pryor, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.
Albert J.M. "John" Watson was charged with first-degree murder. He was convicted by a jury in the Sharp County Circuit Court of second-degree murder. The jury fixed his sentence at a term of twenty years, to be served in the Arkansas Department of Correction, and imposed a $15,000 fine. By a separate verdict, the jury found that Watson had used a firearm in the commission of the offense. After the jury was dismissed, the State, acting pursuant to Ark. Code Ann. § 16-90-120 (1987), asked that the court enhance Watson's sentence by the maximum of fifteen years to be served consecutively with his twenty-year sentence in the Department of Correction. Insofar as is pertinent to this case, section 16-90-120 provides that the term of imprisonment of a person convicted of a felony involving the use of a firearm may be, in the discretion of the sentencing court, increased for an additional term of up to fifteen years. Watson objected to the additional term of imprisonment. After noting that the victim had been shot three times, that Watson had fled the scene, and that he had lacked remorse for the commission of the crime, the court granted the State's request and imposed an additional term of fifteen years to run consecutively to the twenty-year sentence imposed by the jury.
Watson filed a motion for resentencing, contending that the statute under which Watson was sentenced by the jury and the statute by which the judge enhanced his sentence were conflicting. He argued that the court erred by enhancing his sentence because section 16-90-120 was repealed by Ark. Code Ann. § 5-4-103(a) (Repl. 1997) and that by enhancing his sentence pursuant to section 16-90-120, Watson was denied his constitutional right to a jury trial. The court denied his motion, and Watson brings this appeal. We disagree with Watson that the two statutes are in conflict and that section 16-90-120 was repealed by section 5-4-103(a), but we agree that the court erred by enhancing Watson's sentence.
Therefore, we affirm his conviction and modify his sentence.
Arkansas Code Annotated section 16-90-120 states, in pertinent part:
(a) Any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.
(b) The period of confinement, if any, imposed pursuant to this section shall be in addition to any fine or penalty provided by law as punishment for the felony itself. Any additional prison sentence imposed under the provisions of this section, if any, shall run consecutively and not concurrently with any period of confinement imposed for conviction of the felony itself.
Arkansas Code Annotated section 5-4-103(a) provides:
If a defendant is charged with a felony and is found guilty of an offense by a jury, the jury shall fix punishment in a separate proceeding as authorized by this chapter.
Watson argues on appeal that section 5-4-103, which was enacted in 1975, repealed section 16-90-120, which was enacted in 1969. He states that the Act that established section 5-4-103 contained a repealing provision that repealed all conflicting laws.
On appellate review, we construe criminal statutes strictly, resolving any doubts in favor of the defendant. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993). Nothing is taken as intended that is not clearly expressed. Id. Although the repeal of prior statutory provisions by implication is not favored, Mixon v. Mixon, 65 Ark. App. 240, 987 S.W.2d 284 (1999), when the later act covers the subject matter of the previous one and adds provisions clearly showing that it was intended as a substitute for the former provision, the older provision is repealed by implication. Id. Where two statutes do not conflict, one does not repeal the other by implication. Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992). We must construe all statutes relating to the same subject matter together. Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998).
The statutes at issue in the case at bar speak to two different issues, and we have no difficulty in reading the two statutes in harmony....
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... ... Id. It is also well settled that repeal by implication is not favored. See Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992), cert. denied, 507 U.S. 1005, 113 S.Ct. 1647, 123 L.Ed.2d 268 (1993); Uilkie v. State, 309 Ark. 48, 827 S.W.2d 131 (1992); Watson v. State, 71 Ark.App. 52, 26 S.W.3d 588 (2000). Repeal by implication is only recognized in two situations: (1) where the statutes are in irreconcilable conflict, and (2) where the legislature takes up the whole subject anew, covering the entire subject matter of the earlier statute and adding ... ...
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