Lead Opinion
| TAрpellant Jonathan Halpaine brings this interlocutory appeal from an order of the Saline County Circuit Court denying his motion to dismiss the charge of criminal nonsupport. He maintains that allowing the State to proceed on the charge violates his right to be free from double jeopardy as protected by the United States and Arkansas Constitutions. A double-jeopardy claim may be raised by interlocutory appeal because, if a defendant is illegally tried a second time, the right would have been forfeited. Williams v. State,
In 1997, appellant was ordered by the circuit court to pay weekly support for his minor child. The record reflects several findings of contempt and subsequent orders to pick up appellant after he failed to comply with his court-ordered obligation between January 25, 2001, and September 23, 2003. On January 14, 2010, the State filed a criminal information charging appellant with the Class C felony of criminal nonsupport in violation of Ark.Code l?Ann. § 5-26-401 (Supp.2011), alleging that appellant owed $12,011.60 in unpaid support. On April 6, 2011, the State amended the information to add a charge for failure to appear.
On October 5, 2010, appellant filеd a motion to dismiss arguing that he had been held in criminal contempt for nonpayment of child support and that the State was therefore precluded from prosecuting him for the same conduct based on the Double Jeopardy Clause. The State responded and asserted that double jeopardy did not attach because appellant had only been charged with civil contempt throughout the pendency of the case. A hearing was held, and the parties made their corresponding arguments to the court. In a letter order filed on October 6, 2010, the circuit court found that appellant had been held in criminal contempt for an arrearage that had accrued through September 23, 2003.
On October 8, 2010, in anticipation that the State would amend the information to conform to the court’s ruling, appellant filed a second motion to dismiss arguing that criminal nonsupport was a continuing offense and that the State was constitutionally prohibited from punishing appellant multiple times for nonpayment. He claimed that for statute-of-limitations | ..purposes, criminal nonsupport was considered a continuing offense and that because he had already been penalized by the court for nonpayment, the Double Jeopardy Clausе precluded any prosecution against him for nonsupport.
On October 20, 2010, appellant’s criminal case was scheduled for trial. However, because the parties had continued to file pleadings, the court rescheduled the trial and allowed appellant to presеnt additional testimony on his motion to dismiss and gave the State permission to supplement the record to respond to appellant’s argument. On October 26, 2010, the State filed a second amended information charging appellant with the Class D felony of criminal nonsupport in violation of Ark.Code Ann. § 5-26-401 (Supp.2011), alleging that appellant owed $4,476.60 in unpaid support for the period between September 24, 2003, and September 30, 2010. Thereafter, on January 25, 2011, the circuit court entered an order denying appellant’s second motion to dismiss, finding specifically that criminal nonsuppоrt is not a continuing offense and that the Double Jeopardy Clause did not bar prosecution of appellant for any arrearage accruing after September 23, 2003. Appellant filed a timely notice of appeal from that order.
This court reviews a circuit court’s deniаl of a motion to dismiss on double-jeopardy grounds de novo. Green v. State,
For his sole point on appeаl, appellant maintains that the circuit court erred in denying his second motion to dismiss the charge of nonsupport. Specifically, appellant asserts that because the circuit court found that he had been held in criminal contempt for not paying his child-support obligation up to September 23, 2003, his constitutional right to be free from double jeopardy prohibits the State from prosecuting him for criminal nonsupport. Appellant asserts that because criminal nonsupport has been categorized as a continuing offense, it is one offense until the child-supрort obligation is met, and the State is barred by double jeopardy from subjecting him to multiple punishments for that singular offense.
The Fifth Amendment to the United States Constitution provides that no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const, amend. 5; see also Ark. Const, art. 2, § 8 (сontaining nearly identical language). As such, the double jeopardy clauses of the federal and Arkansas constitutions protect criminal defendants from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offеnse after conviction, and (3) multiple punishments for the same offense. North Carolina v. Pearce,
A person commits the offense of criminal nonsupport when he or she fails to support an illegitimate child who is less than eighteen years of age and whose parentage has been determined in a previous judicial proceeding. Ark.Code Ann. § 5-26-401(a)(3) (Supp.2011). Although nonsupport is categorized as a Class A misdemeanor, the statute provides for an enhancement to Class D felony status where the party owes more than $2500 in past-due child support and the amount represents at least four months of past-due support; a Class C felony if the person owes more than $10,000 but less than $25,000 in past-due child support; or a Class B felony if the person owes more than $25,000 in past-due child support. Ark.Code Ann. § 5-26-401(b). This court has recognized that nonsupport is a continuing offense for statute-of-limitations purposes. Reeves v. State,
In this instance, the circuit court denied appellant’s second motion to dismiss on the grounds that criminal nonsupport was not a continuing offense as defined in Cothren and that double jeopardy did not bar the State from prosecuting appellant for any child-support arrearage accruing after the last order holding appellant in сriminal contempt on September 23, 2003. We are convinced that the court correctly denied appellant’s second motion to dismiss on double-jeopardy grounds.
Although this court has not specifically addressed the criminal-nonsupport statute in this context, other states have hеld that where a parent fails to provide support following an earlier nonsupport conviction or earlier finding of criminal contempt for failure to support, the parent commits another offense and double jeopardy does not bar prosecution even where nonsupport is considered a continuing offense for other purposes. Porter v. State,
As such, the offense of criminal nonsupport is not a continuing offense in the literal | ¡¡sense. Rathеr, each time appellant failed to pay his child support, he offended his ongoing duty to provide support. Appellant could be separately prosecuted because each act of nonpayment constitutes a distinct criminal act, one that the criminal-nonsupport statute clearly acknowledges can be prosecuted. The severity of the crime and length of sentence are directly related to the amount of ar-rearage.
Here, the State charged appellant in the amended information with criminal nonsuppоrt and calculated his arrearage based on his failure to pay his child-support obligation from September 24, 2003, until September 30, 2010. Therefore, the State is not seeking to punish appellant for the acts of nonpayment for which he has already been punished. Rather, the State is attempting to penalize him for a violation of the statute for which he has not yet been punished. Because it is clear that the State is not seeking to punish appellant for failure to pay his support obligation prior to September 24, 200S, we conclude that appellant’s prior contempt proceedings do not present a double-jeopardy bar to the State’s prosecution for criminal nonsupport in this instance.
Affirmed.
Notes
. The concurring opinion would hold that double jeopardy does not attach because appellant was held only in civil contempt. However, the circuit court’s specific finding of criminal contempt has not been challenged on appeal or shown to be clearly erroneous. In fact, the State in their response brief concedes that the circuit court found appellant in criminal contempt. As such, we need only address appellant’s argument on appeal — that because he was held in criminal contempt for nonsupport and because criminal nonsupport is a continuing offense, double jeopardy bars multiple punishments for that singular offense.
. In faсt, the misdemeanor offense of criminal nonsupport does not specifically refer to a failure to make court-ordered child-support payments. Rather, it pertains only to a failure to “support" in the general sense, which would likely include a wider range of punishable bеhavior.
Concurrence Opinion
concurring.
I agree that we must affirm the circuit court’s denial of Halpaine’s motion to dismiss the charge of criminal nonsupport. However, I write separately because I am concerned with the circuit court’s finding that Halpaine had been held in criminal contempt for nonsupport. Instead, he was compelled to pay court-ordered support through civil-contempt proceedings. Each order conditioned imprisonment on |9Halpaine’s payment of the child-support arrearage, but we do not have a record to show the conditions of his rеleases. Where, as here, the penalty is conditioned upon an act within Halpaine’s control, payment of child-support arrearages and fines, the relief is civil in nature. See Fitzhugh v. State,