Ellis v. State

603 S.W.2d 891, 270 Ark. 243, 1980 Ark. LEXIS 1586

• Court: Supreme Court of Arkansas
• Decided: September 15, 1980
• Docket: CR 80-61
• Status: Published

Opinions

Frank Holt, Justice.

A jury found appellant guilty of aggravated robbery in violation of Ark. Stat. Ann. §§ 41-2102 and 41-2103 (Repl. 1977). At the bifurcated trial, on the issue of being a habitual criminal, the state introduced a previous conviction for burglary and theft of property. The jury then found he had been previously convicted of these alleged prior felonies. His punishment, as a habitual offender, was assessed at 15 years’ imprisonment. Appellant contends the court erred in allowing the introduction of his previous conviction of burglary and theft of property as evidence of two separate prior felonies.

The state acknowledges this was error and we agree. Ark. Stat. Ann. § 41-1001 (3) (Repl. 1977) provides in pertinent part:

For the purpose of determining whether a defendant has previously been convicted or found guilty of two [2] or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt . . .

The burden is on the prosecution to offer proof that the attending felony is not the object of the burglary. Steffen v. State, 267 Ark. 402, 590 S.W. 2d 302 (1979). Here no such proof was shown by the state. Therefore, appellant’s prior conviction of burglary and theft can only be counted as one offense. One prior offense, as here, will not support an enhanced sentence. § 41-1001 (1).

However, such an error does not necessarily mandate a new trial. We have reduced the sentence in lieu of reversing and remanding for a new trial. Steffen v. State, supra; McConahay v. State, 257 Ark. 328, 516 S.W. 2d 887 (1974). The authority of this court to reduce a sentence on appeal was discussed at length in Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977), cert. denied 434 U.S. 878 (1977). See also Clark v. State, 246 Ark. 876, 440 S.W. 2d 205 (1969); Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600 (1972); Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974); Estes & Colburn v. State, 258 Ark. 597, 528 S.W. 2d 138 (1975); Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972); Ark. Stat. Ann. § 27-2144 (Repl. 1979); and Ark. Stat. Ann. § 43-2725.2 (Repl. 1977).

Here the jury had found the appellant guilty of aggravated robbery before hearing any evidence in the bifurcated proceeding with respect to the alleged felonies, which evidence, as indicated, constituted error. The sufficiency of the evidence as to aggravated robbery is not questioned. Therefore, to avoid any possibility of prejudice to the appellant, we reduce his sentence to 5 years, the minimum for aggravated robbery, unless the state objects within 17 calendar days after this opinion becomes final. Should the state object, the judgment is reversed and the cause remanded.

Affirmed upon acceptance of modification.

Hickman, J., concurs in parts and dissents in part.