Horace Junior ROGERS v. STATE of Arkansas
CR 76-36
Supreme Court of Arkansas
July 12, 1976
538 S.W. 2d 300
ELSIJANE T. ROY, Justice
Hubert Graves, for appellant.
Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
ELSIJANE T. ROY, Justice. On April 22, 1975, appellant Horace Rogers was charged under
Appellant was tried and found guilty of burglary. Thereafter evidence of priоr convictions was introduced by the State in support of its charge under the Habitual Criminal Statute. The past convictions included charges of burglary and grand larceny to which appellant had entered a plea of nolo contendere; a sentence under the provisions of
Appellant first cites error in the lower court‘s ruling which admitted as evidence of a previous conviction his probationary sentence for grand larceny. Appellant contends that inasmuch as he was not committed to prison as a result of the charge of grand larceny, but rather received a probationary sentence, this could not be construed as a conviction and cannot serve as the basis for applying the Habituаl Criminal Statute.
In support of this argument appellant cites State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83 (1935), Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 (1970), and Sutherland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W. 2d 724 (1971), as reflecting the view that a commitment to prison is a necessary predicate to a finding of a conviction. The Habitual Criminal Statute is not controlled by the same interpretative logic that has governed the decisions earlier cited.
Rodgers, supra, concerned construction of a statute providing for revocation of a license to practice medicine upon “сonviction of a crime involving moral turpitude.” Tucker, supra, concerned construction of a statute providing “that a person who has been convicted of a felony, and has not been pardoned, is disqualified to act as a grand or petit juror.” Southerland, supra, concerned construction of a statute providing that an insurance аgent‘s license could be revoked
. . . [T]he passage of this Act will provide for grеater punishment of habitual criminals and reduce the number of persons committing more than one felony and reduce the number of crimes committed in this State. * * * (Italics supplied.)
The statute provides that:
Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows: (Italics supplied.)
The crime with which appellant was charged and found guilty was punishable by a term of imprisonment. The legislature intended the word “conviction” as used in
A conviction is defined to be “that legal proceeding of record which ascertains the guilt of the party, and upon which the sentence or judgment is founded.”
The statutory purpose was to discourage individuals from repeatedly committing acts constituting felonies under our law, i.e., аcts which are “punishable by imprisonment in the penitentiary.” It was the repeated commission of such offenses which concerned the legislature, not the actual punishment by imprisonment or lack of it which the offender received for any such previous offense.
It would not be reasonable to assume that the legislature intended a person who was found to have committed a felony for which he was actually imprisoned should receive a
Appellant also questions the admission of testimony that he had been charged in the United States District Court with the crime of uttering and sentenced under the Federal Juvenile Delinquency Act1 to a term not to exceed his minority.
An adjudication in federal court as a juvenile delinquent is not deemed a criminal conviction. Fagerstrom v. U.S., 311 F. 2d 717 (8th Cir. 1963). The stated legislative intent of the Act is that any adjudication of juvenile delinquency thereunder shall result in the determination of a status and not conviction for a crime. Cotton v. U.S., 355 F. 2d 480 (10th Cir. 1966). See United States v. Caniff, 521 F. 2d 565 (2d Cir. 1975), cert. denied 423 U.S. 1059, 96 S. Ct. 796, 46 L. Ed. 2d 650 (1976), to the same effect.
For the foregoing reasons the court erred in allowing the sentence under the Federal Juvenile Delinquency Act to be admitted in evidence.
The erroneous admission of this convictiоn requires that appellant‘s plea for a sentence reduction be recognized.
If the fourth or subsequent offense is such that, upon a first conviction, thе offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for the fourth or subsequent offensе for a determinate term not less than the maximum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than one and one half (1 1/2) times the maximum sentence provided by law for a first conviction; provided, that any person convicted of a fourth or subsequent offense shall be sentenced to imprison-
ment for not less than five (5) years.
Since we have determined that of the two prior convictions contested by appellant as inadmissible one must be so declared, three previous admissible convictions remain. When cumulated with appellant‘s instant conviction the language of
Accordingly, should the attorney general decide, within 17 days, to accept this reduction the judgment will be affirmed as modified. Otherwise the judgment will be reversed and the cause remanded for a new trial.
FOGLEMAN, J., dissents.
JOHN A. FOGLEMAN, Justice, dissenting. I must dissent because I think the court has misconstrued the Habitual Criminal Act as to the probationary sentence. This act is highly penal and must be strictly construed against the state and in favor of the accused. Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499. Otherwise, I would agree that the statute might possibly be construed as the majority has construed it. But if the strict construction rule is applied, the very language of the statute mandates a construction more favorable to appellant. Actually the Habitual Criminal Act imposes collateral consequences just as did the statutes involved in State Medical Board v. Rodgers, 190 Ark. 266, 79 S.W. 2d 83; Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888; and Sutherland v. Arkansas Department of Insurance, 250 Ark. 903, 467 S.W. 2d 724. If there is any difference, a statute calling for greatly extended terms