Williams v. State

659 S.W.2d 948, 280 Ark. 543, 1983 Ark. LEXIS 1547

Opinions

Per Curiam.

Petitioner Johnny Williams was convicted by a jury of second degree murder and sentenced to a term of 20 years imprisonment in the Arkansas Department of Correction with five years suspended. The Court of Appeals affirmed. Williams v. State, not designated for publication (March 16, 1983). Before this trial, petitioner’s probation on charges of breaking or entering and theft of property was revoked and he was sentenced to ten years imprisonment. The Court of Appeals also affirmed the revocation. Williams v. State, not designated for publication (March 2, 1983). The two sentences were ordered served consecutively. He now seeks permission to proceed in circuit court for postconviction relief with regard to both the revocation and the murder conviction.

Petitioner was originally placed on three years probation on the charges of breaking or entering and theft of property. When his probation was revoked, he was sentenced to ten years in prison. He contends that it was unlawful for him to be sentenced to a term longer than the probationary period. We disagree. The present law, Ark. Stat. Ann. § 43-2332 (Supp. 1983) which in pertinent part was also in effect at the time petitioner committed the crime for which he was placed on probation) provides that the sentence imposed upon revocation of probation is limited to the sentence imposed or any lesser sentence which might have originally been imposed. In petitioner’s case, however, no sentence was imposed; he was simply placed on probation. The term “probation” is defined in Ark. Stat. Ann. § 41-801 (2) (Repl. 1977) as:

“Probation” or “place on probation” means a procedure whereby a defendant, who pleads or is found guil ty, is released by the court without pronouncement of sentence but subject to the supervision of a probation officer, (emphasis added)

Hence, the court was free to sentence him to any term it might have imposed originally. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980). Since the ten-year sentence imposed could have been imposed when he was convicted, we find no error.

With regard to his conviction for murder, petitioner alleges that a conspiracy to conceal evidence existed among the witnesses to the shooting. He further contends that the police did not properly investigate the crime and that witnesses gave conflicting testimony. All these allegations are essentially attacks on the sufficiency of the evidence. Challenges to the evidence are a direct attack on the conviction which must be made on direct appeal. The issue is not cognizable under Rule 37. Swisher v. State, 257 Ark. 24, 514 S.W.2d 218 (1974).

Petition denied.

Hickman, Purtle and Dudley, JJ., dissent.