This is аn appeal from the Benton Circuit Court’s denial of bail which we treat as a рetition for a writ of certiorari. Thomas v. State,
On September 5,1991, Duncan was charged in Washington County with possession of a controlled substance with intent to deliver. He was released the same day on a $10,000 bond. Some two weeks later Duncan was arrested for probation violation and incarcerated in the Benton County jail. The state рromptly filed a petition for revocation alleging that Duncan violated thе conditions of his probation by committing the offenses in Washington County.
On September 27,1991, а hearing was held on the petition to revoke probation. Circuit Judge Tom J. Keith found there was probable cause to revoke Duncan’s probation and that he had no right to bail and thereafter recused from the case.
Duncan petitioned for a writ of habeas corpus to reconsider the finding of probablе cause and denial of bail and to postpone the revocation hеaring until the pending charges in Washington County were concluded. Circuit Judge Terry Crabtree, replacing Judge Keith, denied the postponement and held as a matter оf law that Duncan was not entitled to bail.
For his first allegation of error, appеllant contends that the Benton Circuit Court erred in denying bail pending his probation revocation hearing. We agree, consequently, we reverse and remand.
Arkansаs Const, art. 2, § 8 confers an absolute right before conviction, except in capital cases, to a reasonable bail. Reeves v. State,
All persons shаll, before conviction, be bailable by sufficient sureties, except for capital offenses, which proof is evident or the presumption is great. [Emphasis added.]
In the first hearing Judge Keith found as a matter of law that Duncan was not entitled to bаil. In subsequent hearings Judge Crabtree reached the same conclusion. However, he reasoned that defendants facing a revocation hearing have already been convicted, which differentiates those defendants from ones whо have merely been accused of committing a crime.
We agree that Dunсan’s situation is different from the unconvicted accused because prior tо the charges of possession and delivery of a controlled substance Dunсan tendered a plea of guilty to a felony, despite the fact that it was deferred under Act 346. But we cannot agree that the deferment as provided under Act 346 is the equivalent of a conviction. A conviction is defined in Ark. Code Ann. § 16-85-712(3) (1987) as a “. . . plea of guilty accepted by the court.” In this case it is clear that Duncan’s guilty plеa was not yet accepted by the court. An April 29, 1991, order states:
. . . the court noted but refused to accept the defendant’s tendered plea of guilty, deferred further proceedings under Act 346 of 1975 and placed defendant on supervisеd probation for five (5) years. . . . [Emphasis added.]
Duncan’s guilty plea to a felony mаy be taken into consideration in fixing the amount and conditions of bail, however, the trial court’s ruling that, as a matter of law, the appellant cannot be released on bail because of the plea, cannot be sustained. Duncan is еntitled to a hearing in which a proper inquiry is conducted concerning the prоpriety of his release on bail. See Ark. R. Crim. P. 8.5 and 9.2.
For his second allegation of еrror Duncan argues that the Benton County Circuit Court erred in denying his motion requesting that the rеvocation hearing be postponed until after the resolution of the charges against him in Washington County. We decline to consider this issue because the court’s denial of the motion was not a final judgment for purposes of appeal. See Ark. R. App. P. 2(a); Ellis v. State,
Reversed and remanded.