State v. Colvin
2013 Ark. 203
| Ark. | 2013Background
- State appeals a sentencing order after Colvin was found guilty of aggravated assault on a family member with a presence-of-a-child enhancement under 5-4-702; court suspended imposition for the base offense and imposed an enhanced term that was partially suspended; State contends the enhancement must be imprisonment and cannot be suspended; court reverses and remands for resentencing.
- Colvin was convicted at bench trial of aggravated assault on a household member; the child was present; the court found the enhancement applicable and ordered the enhanced portion to be served consecutively but suspended.
- Statutes at issue include 5-4-702 (enhancement for presence of a child), 5-4-702(d)-(e) (consecutive term and no early release), and the general suspension provisions 5-4-104 and 5-4-301; the majority reads the statute as mandating an un-suspendable enhanced sentence, while the dissent argues for strict construction allowing suspension.
- Sullivan v. State addressed the interpretation of “may be subject to an enhanced sentence” and the jury’s role but did not decide on mandatory imposition; the majority here relies on Sullivan for interpretation of “may” but ultimately holds suspension is impermissible; Lovell v. State discussed the interaction of the Omnibus DWI Act with general sentencing provisions; Lovell is treated as supporting a specific act over a general one in certain contexts.
- Court reverses and remands for resentencing, holding the circuit court lacked authority to suspend the enhancement and that the sentence must be served as statutorily mandated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 5-4-702 requires mandatory imprisonment for the enhancement | State argues enhancement must be imposed with no suspension | Colvin argues enhancement not mandatory and may be suspended under 5-4-104/5-4-301 | Yes, but remand for resentencing (enhancement not suspendable as applied) |
| Whether suspension of the enhanced sentence is prohibited by law | State contends suspension defeats statutory intent | Colvin contends suspension allowed under general sentencing provisions | Enhanced portion cannot be suspended; reversible error; remand for resentencing |
| Whether the circuit court erred by suspending execution of sentence on the enhancement | State argues suspension of execution prohibited | Colvin argues not prohibited without cross-appeal | Yes, court erred in suspending execution; substantial error noted |
Key Cases Cited
- Sullivan v. State, 366 Ark. 183 (2006) (construction of "may" in 5-4-702(a); did not decide mandatory imposition; limited language on enhancement)
- Lovell v. State, 283 Ark. 425 (1984) (specific act over general act; specific DWI Act interpretation over general sentencing act)
- State v. Stephenson, 340 Ark. 229 (2000) (uniformity in sentencing procedures; application to convict defendants)
- State v. Hardiman, 353 Ark. 125 (2003) (State may appeal; sentencing and administration of justice reviewed)
- State v. Pinell, 353 Ark. 129 (2003) (uniform administration of justice; sentencing procedures)
- State v. Fountain, 350 Ark. 437 (2002) (unauthorized sentence reversal/remand when not authorized by law)