Wilburn v. State, 5781

• Court: Arkansas Supreme Court
• Writing for the Court: JONES
• Citation: Wilburn v. State, 253 Ark. 608, 487 S.W.2d 600 (Ark. 1972)
• Decision Date: 11 December 1972
• Docket Number: No. 5781,5781
• Parties: Tommy Lee WILBURN, Appellant, v. STATE of Arkansas, Appellee.

Page 600

487 S.W.2d 600

253 Ark. 608

Tommy Lee WILBURN, Appellant, v. STATE of Arkansas, Appellee.

No. 5781.

Supreme Court of Arkansas.

Dec. 11, 1972.

Lloyd R. Haynes, Little Rock, for appellant.

Ray Thornton, Atty. Gen., by Milton Lueken, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

Tommy Lee Wilburn was convicted of robbery by a jury in the Pulaski County Circuit Court and was sentenced to prison for a term of 12 years as a third offender under Ark.Stat.Ann. § 43--2328 (Supp.1971), and under the procedure as outlined in Ark.Stat.Ann. § 43--2330.1 (Supp.1971). The pertinent portions of these two sections as they relate to the case at bar, appear as follows:

'Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows:

(1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern.

(2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern. * * *

The following trial procedure shall be adhered to in cases involving habitual criminals:

(1) The jury shall first hear all of the evidence pertaining to the current charge against the defendant and shall retire to reach its verdict, as to this charge, based only upon such evidence; provided, however, that nothing herein shall prohibit cross-examination of a defendant as to previous convictions when the defendant takes the stand in his own defense.

(2) If the defendant is found guilty, the same jury shall sit again and hear evidence of defendant's prior conviction(s). Provided, that the defendant shall have the right to deny the existence of any prior conviction(s), and to offer evidence in support thereof.

(3) The jury shall again retire, and if it is found that the prior conviction(s) exists, or if the defendant admits such previous conviction(s), then the prior conviction(s) shall be considered in fixing the punishment for the current offense for which the defendant has been convicted in accordance with Section 1 (§ 43--2328) hereof.'

On his appeal to this court Wilburn has designated the point on which he relies for reversal as follows:

'The court erred in allowing the state to introduce and read into evidence a certified record of a prior conviction, which failed to show either that appellant was represented by counsel or that he had waived counsel.'

We conclude that Wilburn is correct in his contention on this point.

As above indicated, Wilburn was being tried for the crime of robbery which, upon conviction, carries a statutory penalty of imprisonment in the penitentiary for not less than three nor more than 21 years. Ark.Stat.Ann. § 41--3602 (Repl.1964). The record in this case reveals that after the jury had found Wilburn guilty of robbery, the jury then heard evidence of the defendant's prior convictions as provided in § 43--2330.1, supra, and as charged in the information filed against him. The state offered proof of two prior felony convictions, one of which was not questioned at the trial or questioned on this appeal.

As to the evidence of conviction that was questioned at the trial and is questioned on this appeal, a certified criminal could docket entry for Phillips County was offered and accepted in evidence over the objections of Wilburn. This docket entry recites as follows:

'This cause coming on to be heard, comes the State of Arkansas by its Prosecuting Attorney and the defendant in person and being informed of the nature of the charge in the information and penalty of conviction hereof for plea herein says he is guilty of burglary and robbery.

It is therefore considered, ordered and adjudged that defendant is guilty of burglary and robbery and the Court does sentence him to eighteen years on burglary and eighteen years on robbery, sentences to run consecutive.'

It will be noted that nowhere in this docket entry of judgment is it recited that Wilburn was represented by counsel or that he had waived counsel, but on the contrary the record indicates that no defense counsel was present. The docket entry does indicate that the court officials were present; that the state appeared by its prosecuting attorney and the defendant appeared in person. Wilburn's objections to the introduction of this evidence appears as follows:

'We object to this on the grounds that there is nothing in here reflecting that the defendant, on this date, was represented by counsel, or had waived counsel. The record affirmatively states the presence of several individuals but it is completely silent as to any attorney whatsoever other than the Prosecuting Attorney. . . .'

The state's attorney general concedes with commendable candor that his careful research of the point indicates that Wilburn's assignment has merit under the decisions of Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319; United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; Loper v. Beto, 405 U.S. 473, 31 L.Ed.2d 374, 92 S.Ct. 1014; Goodwin v. Smith, 439 F.2d 1180 (5th cir., 1971); United States v. Lufman, 457 F.2d 165 (7th cir., 1972); Craig v. Beto, 458 F.2d 1131 (5th cir., 1972); Tiffey v. State, 476 P.2d 84 (Okl.Cr., 1970); State v. Kenney, 107 Ariz. 133, 483 P.2d 548 (1971); White v. State, 11 Md.App. 423, 274 A.2d 671 (1971); Donahay v. State, 47 Ala.App. 418, 255 So.2d 598 (1971).

The appellant does rely heavily on Burgett v. Texas, supra, and argues that his conviction should be reversed. We agree with the state, however, that Burgett is distinguishable from the case at bar in that the questioned evidence of the prior conviction in Burgett was admitted prior to determination of the defendant's guilt by the jury on the crime for which ...