The opinion
Robert L. Brown, Justice, dissenting.
I would affirm both the contempt ruling suspending Watson’s driving privileges until he reported to the Ozark Guidance Center for presentence evaluation and his sentence of a fine and 30-day incarceration with all but one day suspended and credit for time served.
The opinion reverses the sentence because Watson did not report to the Center, and § 5-65-109(b) makes that a prerequisite to pronouncement of sentence. I cannot agree that a defendant can fail to report and then proclaim that he is immune from sentencing. The effect of the majority opinion is to allow a defendant to bypass sentencing by simply refusing to partake in presentence evaluation. If Watson can avoid sentencing in this manner, why cannot similarly situated defendants do likewise? The General Assembly certainly did not intend such contorted consequences or envision nonparticipation in the evaluation as an avenue for obstructing pronouncement of sentence.
Other jurisdictions lend credence to this dissenting opinion. Kansas v. Borders, 255 Kan. 871 , 879 P.2d 620 (1994); Idaho v. Bylama, 103 Idaho 472 , 649 P.2d 1228 (1982). In Borders, the defendant was convicted of three counts of rape and first-degree murder and refused to be interviewed as part of the presentence investigation. Kansas statutes made a presentence investigation mandatory. The Kansas Supreme Court denied the defendant’s claim of a due process violation:
The defendant was given the opportunity of an interview and declined. The defendant cannot refuse to participate in the PSI interview process and then use the failure of an interview as a ground for appeal. We know of no rule of law that requires the court services officer to continue making attempts at a personal interview with the defendant after the defendant has refused the opportunity and refused to cooperate.
The defendant’s due process rights were fully protected by the trial judge in this case, and the defendant has shown no prejudice. We find no abuse of discretion by the trial court in any of the issues asserted on appeal.
879 P.2d at 631 .
In Bylama, the Idaho statute required a psychological examination of the defendant as part of a presentence report where appropriate. The defendant, who was convicted of bank robbery, did not cooperate in the psychological evaluation. The Idaho Court of Appeals concluded:
Appellant contends the presentence report was inadequate because it did not include all of the information required by I.C.R. 32(b). However, the failure to meet all of those requirements was the result of appellant’s refusal to cooperate in the preparation of the report. He cannot now claim that the deficiencies in the report precluded the trial court, from sentencing him. See State v. Lopez, 100 Idaho 99 , 593 P.2d 1003 (1979); King v. State, 93 Idaho 87 , 456 P2d 254 (1969.)
649 P2d at 1229 .
The decisions in Kansas and Idaho make good, common sense, and I would follow them. To do otherwise allows a defendant to escape punishment by his own recalcitrance.
I respectfully dissent.