Johnson v. StateJohnson v. State
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Appellant Carlton Johnson appeals the sentence he received for keeping a gambling house. He contends that the trial court mistakenly cоncluded that alternative sentencing, under the Arkansas Criminal Code, was not available for this offense. We agree with Johnson’s contention and remand this casе for the sole purpose of allowing the trial court to consider alternative sentencing provided under the Criminal Code,
Johnson, a first-time offender, plеd guilty to keeping a gambling house in violation of
The issue on appeal is whether the sentencing provision of the gambling-house statute is mandatоry and exclusive of the alternative-sentencing provisions of the Criminal Code. Johnson contends that the alternative-sentencing provisions, permitting suspendеd sentence or probation, are applicable
The gambling-house statute,
Every person who shall keep, conduct, or operate . . . any gambhng house or place where gambling is carried on . . . shall be deemed guilty of a felony and on conviction shall he confined in the Department of Correction for not less than one (Í) year nor more than three (3) years. (Emphasis added.)
As previously mentioned, the trial judge, at the time of sentencing, indicated a willingness to place Johnson on prоbation, but the judge expressed his belief that the gambling-house offense was an unclassified offense enacted in 1913, and was not covered by the alternative-sentencing provisions of the Criminal Code, which were enacted in 1975. See
The gambling-house statute and its penal provision were previоusly before this court in the case of Reeder v. State, 248 Ark. 902, 455 S.W.2d 92 (1970), when the statute, containing the same language, was located at
The Criminal Code was enacted in 1975 after the Reeder decision, and the Code provided new аlternative-sentencing procedures. Nonetheless, the sentencing and probation provisions in
It was not until Act 586 of 1991 (the repealing statute) that the General Assembly specifically repealed
The State cites to thе supplemental opinion on denial of rehearing in Lovell v. State, 283 Ark. 425, 434-434-C, 681 S.W.2d 395, 396 (1984) for the proposition that, when a statute contains a mandatory sentence, thе sentence to imprisonment cannot be reduced or suspended. That decision is inapplicable here. In Lovell, we said that “[t]he drafters of the criminal code recognized that there may be statutes later enacted which have their own penal provisions, unaffected by the criminal code.” Id. at 434-B, 681 S.W.2d at 396. (Emphasis added.) In reaching its holding, the Lovell court related that the drafters of the 1975 Criminal Code recognized that there would be statutes later enacted which would have their own penal provisions, unaffected by the Code. In the present case, we are dealing with an earlier 1913 penal provision that this court hеld, in Reeder, was subject to suspension and probation laws that were in effect prior to and after enactment of the Criminal Code.
This determination is also consistent with the principle of statutory construction that legislative acts relating to the same subject or having the same purpose must be construed together and in harmony if possible. Reed v. State, 330 Ark. 645, 649, 957 S.W.2d 174, 176 (1997). Such statutes are said to be in pari materia “when they relate to the same person or thing, to the same сlass of persons or things, or have the same purpose or object.” 2B Norman J. Singer, Sutherland Statutory Construction § 51.03 (5th ed. 1992). In the case before us, we are presented with criminal statutes that were enacted at different times. In construing these statutes, we presume that when the general assembly passed the later aсt, it was well aware of the prior act. Reed, 330 Ark. at 649, 957 S.W.2d at 176.
In conclusion, the Criminal Code was originally enacted to eHminate or replace archaic аnd overlapping statutes, and to develop a uniform method of grading offenses. Brimer v. State, 295 Ark. 20, 27-28, 746 S.W.2d 370, 374 (1988) (citing John DiPippa, Suspending Imposition and Execution of Criminal Sentеnces: A Study of Judicial and Legislative Confusion, 10 U. Ark. Little Rock L.J. 367 (1987-88)). These purposes are evident in the plain language of the Code’s general provisions, in which the Cоde is made applicable to all offenses. See
Notes
Sentencing shall be in accordance with the statutes in effect at the time of the commission of the crime. State v. Galyean, 315 Ark. 699, 700, 870 S.W.2d 706, 707 (1994). Johnson committed the crime in 1995.