English v. State

626 S.W.2d 191, 274 Ark. 304, 1981 Ark. LEXIS 1470

• Court: Supreme Court of Arkansas
• Decided: November 23, 1981
• Docket: CR 81-67
• Status: Published

Opinions

Richard B. Adkisson, Chief Justice.

After a jury trial, appellant was convicted of rape and burglary and sentenced as a habitual offender to life imprisonment and fined $15,000 for rape and to 40 years for burglary. The sentences were set to run consecutively. On appeal we reverse and remand for a new trial.

The evidence showed that on November 9, 1980, at approximately 7:30 p.m. appellant entered the victim’s apartment through an open window and raped her. Five days later appellant returned to the victim’s home “around midnight” and knocked on her door; she recognized him as her previous attacker and called the police. A few minutes later appellant was arrested in a parking area one block from the victim’s home. Appellant was placed in the back seat of a police vehicle and was carried directly to the victim’s residence where she made a positive identification.

Ark. Stat. Ann. § 41-1001 (Supp. 1981) provides that a person who has been “convicted” or “found guilty” of previous offenses may be sentenced to an extended period of imprisonment (as a habitual offender). Appellant argues, and we agree, that the trial court erred in allowing the State to introduce into evidence as a previous conviction proof of a “court probation” proceeding in which there was no conviction or finding of guilt (Sebastian County Circuit No. CR-1978).

In Cantrell v. State, 258 Ark. 833, 529 S.W. 2d 136 (1975), we defined court probation:

Under the ‘court probation’ procedure, the trial court retains jurisdiction over one admittedly guilty of a felony, but gives him a chance to rehabilitate himself, by a formal refusal to accept his guilty plea. By retaining jurisdiction, however, the trial court can revoke the ‘probation’ by accepting the plea at a later time, if the person commits another offense.

Such a proceeding does not constitute a "conviction” or “finding of guilt” under the above statute until the plea is finally accepted and, therefore, is inadmissible for sentence enhancement purposes.

The Arkansas Criminal Code which became effective January 1, 1976, Act 280 of 1975, codified this common law “court probation” procedure in Art. 3, Disposition of Offenders, (A.S.A. §§ 41-801 — 1351 [Repl. & Supp. 1981]) by providing in Ark. Stat. Ann. § 41-803 (5) (Supp. 1981) that “If a defendant pleads guilty or is found guilty of an offense . . . the court may suspend imposition of sentence or place the defendant on probation .... ” Placing the defendant on probation without imposing a sentence was the essential element in “court probation” as it is under the Arkansas Criminal Code. All other statutory sentencing procedures require that a judgment of conviction be entered, and the sentence begins to run from the time of the sentence and it is immaterial whether the trial court suspends (a) the imposition of the sentence or (b) the execution of the sentence. See Canard v. State, 225 Ark. 559, 283 S.W. 2d 685 (1955); Culpepper v. State, 268 Ark. 263,595 S.W. 2d 220 (1980). The Criminal Code further provides in Art. 3, § 803 (1) that “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this article.” It is, therefore, clear that apart from statute this common law “court probation” procedure is no longer available as a sentencing alternative. See McGee v. State, 271 Ark. 611, 609 S.W. 2d 73 (1980).

Other objections raised by appellant are not considered since they will not likely be raised in the same context upon retrial.

Reversed and remanded.

Purtle and Dudley, JJ., concur.