Hattison v. State

920 S.W.2d 849, 324 Ark. 317, 1996 Ark. LEXIS 266

• Court: Supreme Court of Arkansas
• Decided: May 6, 1996
• Docket: 95-563
• Status: Published

Opinions

DAVID NEWBERN, Justice.

On March 3 and March 7, 1995, judgments of acquittal of criminal charges were entered in favor of Louis Hattison, the appellant. In each judgment the Circuit Court recited a finding that Mr. Hattison lacked the mental capacity to commit the crime charged. There was a provision in each for automatic commitment of Mr. Hattison to the custody of the Director of the Department of Human Services for examination by a psychologist or psychiatrist in accordance with Ark. Code Ann. § 5-2-314(b) (Supp. 1995). Subsection (d) of the statute states the Director “shall file the psychiatric or psychological report with a probate court ... within thirty (30) days following entry of order of acquittal.” The report was not filed until April 7, 1995. Mr. Hat-tison argues that, due to the late filing of the report, the Probate Court lacked jurisdiction to order continuation of his commitment. We affirm the Probate Court’s order denying Mr. Hattison’s petition for release.

We agree with Mr. Hattison’s first point of appeal which is essentially that the report was late and the Probate Court erred in stating it was timely. We cannot, however, agree with his second point which is that the Probate Court lost jurisdiction as a result of the report being late and thus erred in approving his continued commitment for treatment.

When the General Assembly uses the word “shall,” we hold the effect is mandatory unless an absurdity would result. Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993). The 30-day requirement is thus mandatory in the literal sense. The question remains, however, whether the sanction for violation of it is, as Mr. Hattison argues, loss of jurisdiction in the Probate Court to decide whether continuation of his commitment is justified. The statute does not address any sanction to be employed, and Mr. Hattison cites no case suggesting it was the General Assembly’s intent to deprive the Probate Court of jurisdiction should the report be untimely.

In Campbell v. State, supra, we held that where a petition for involuntary commitment was not filed within 72 hours of an individual’s confinement, as required by the mandatory language of Ark. Code Ann. § 20-47-210, the Probate Court lacked jurisdiction to decide the petition.

At first blush, it might seem that the Campbell case should control this one; however, there is a significant distinction. Mr. Campbell had not been committed by a court. The State had the burden of proving Mr. Campbell should be committed, and the petition was to be filed for the purpose of initiating that proceeding. Mr. Hattison, on the other hand, has been found lacking in mental capacity sufficient to have committed the crimes with which he was charged. According to § 5-2-314(e), Mr. Hattison now has the burden of proving to the Probate Court that “his release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect.” Jurisdiction of the Probate Court was established by the “automatic” order of commitment entered by the Circuit Court.

While a commitment cannot be “indefinite,” Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981), citing Jackson v. Indiana, 406 U.S. 715 (1972), we know of no reason to deprive the Probate Court of jurisdiction due to a late psychiatric report. Had that been the intention of the General Assembly, it could easily have so provided. As the Supreme Court of Nebraska stated in State v. Steele, 399 N.W.2d 267 (Neb. 1987), a case cited by the State that is almost exactly like this one:

we find no announced penalty in the statute or the case law interpreting the statute for the State’s failure to meet the statutory time limits. The appellant gives no support for his contention that the remedy is dismissal and loss of jurisdiction.... We note that no such sanction [as is provided in the speedy trial law] is provided by the statutes governing acquittals on the ground of insanity.

Affirmed.

Corbin, J., concurs.