Petition — Reeves v. Arkansas

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i JUL 5 1978

Ropney Date REEVEs

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PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS SUPREME COURT

JURISDICTIONAL STATEMENT

Rosert S. Buatr

Attorney at Law

P.O. Box 1825

Fort Smith, Arkansas

Attorney for Petitioner

TREVATHAN PRINTING COMPANY, NEWPORT, ARKANSAS

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INDEX

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UNITED STATES CONSTITUTIONAL PROVISIONS,

ARKANSAS CONSTITUTIONAL PROVISIONS,

ARKANSAS STATUTES AND RULES

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UNITED STATES CONSTITUTION

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Fourteenth Amendment ....................05. 3, 11, 13

UNITED STATES STATUTE

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ARKANSAS CONSTITUTION

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ARKANSAS STATUTES

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Ark. Stat. Ann. §§43-601 — 43-631 ...........0.ecee0es 11

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ARKANSAS RULES OF CRIMINAL PROCEDURE

iii

CASE CITATIONS

Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006,

Se Aki EE vi Soke S eek kshsc reand bees 10

Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26

me © F i. | Perey + anne oe 10, 11, 12, 13

Ellingberg v. State, 252 Ark. 199, 492 S.W.2d 904

GD Sshi'ksg'a dv areca eh be ele.d adorns eaan Coad ewes es bee 11

Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43

Sis ee Oe OOD ic'n 0 Bis 080d 60% 00ers 10, 11, 12, 13

Gideon v. Wainwright, 372 U.S. 335, 83, S.Ct. 792,

ee SS GO ee errr 10

Graves v. State, 256 Ark. 117, 505 S.W.2d 748

COE a Pan iS Whew bsiesa eek de cae bed ak es 11, 12

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77

we FS. er ey oe eee ee eee 10

Reeves v. State, 261 Ark. 384 548 S.W. 2d 822 (1977) .... 12

TREATISE

21 Am. Jur. 2d Criminal Law, $318, p. 347 ............. 10

Supreme Court Of The United States

No, ————

ROMNEY DALE REBVES ........0 0c cccccccccccees Petitioner

v.

Cee i arccbiccvscccccecs Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS SUPREME COURT

JURISDICTIONAL STATEMENT

The Petitioner, Rodney Dale Reeves, petitions this

Court for a Writ of Certiorari to review the final order and

Opinion of the Supreme Court of Arkansas entered April

10, 1978, affirming the Judgment of his conviction for the

offense of Theft by Receiving (felony) and submits this

statement to show that the United States Supreme Court

has jurisdiction of this Petition and that a substantial

question is presented.

OPINION BELOW

The Opinion of the Supreme Court of Arkansas is re-

ported in 263 Ark. 227, 564 S.W.2d 503 (1978) (Advance

Sheets). The Opinion is set forth in Appendix “A” to the

Jurisdictional Statement.

2

JURISDICTION

The Opinion of the Supreme Court of Arkansas was

delivered on April 10, 1978, affirming the Judgment of the

Sebastian County Circuit Court sentencing Petitioner to ten

(10) years in the Department of Corrections and a fine of

$10,000.00 on the offense of Theft by Receiving and being a

Habitual Criminal. A Petition for Rehearing was filed on

April 25, 1978. The rehearing was denied on May 15, 1978.

Notice of Appeal and Notice of Filing For Writ of Certiorari

to Review was filed on May 15, 1978. A Motion to Stay the

Mandate of the Arkansas Supreme Court and to remain on

bond was filed in the Arkansas Supreme Court on May 15,

1978, On May 30, 1978, the Arkansas Supreme Court entered

an order granting Petitioner’s Motion to Stay Mandate and

remain on bond pending appeal to or review by certiorari

by the United States Supreme Court.

The jurisdiction of the United States Supreme Court

to review this decision by petition for Writ of Certiorari or

appeal is conferred by 28 U.S.C. $1257.

UNITED STATES CONSTITUTIONAL PROVISIONS,

ARKANSAS CONSTITUTIONAL PROVISION,

ARKANSAS STATUTES AND RULES

INVOLVED

The United States Constitutional Provisions involved

are Amendments 6 and 14 and can be found in U.S.C.A.,

Constitution, Amendment 6 to 14, page 223.

Amendment 6 provides as follows:

In all criminal prosecutions, the accused shall

enjoy the right * * * to have the assistance of counsel

for his defense.

3

Amendment 14 provides as follows:

* * * No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any per-

son of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of law.

The Arkansas Constitutional provision involved is

Article 2, Section 10 which can be found in Volume 1, page

33 of Arkansas Statutes Annotated (Official Edition).

Article 2, Section 10 provides as follows:

In all criminal prosecutions the accused shall enjoy

the right * * * to be heard by himself and his counsel.

The Arkansas Statutes involved are Ark. Stat. Ann.

Sections 43-603, 604, 605, 606, 618, 619 and 43-1203. These

statutes can be found in Volume 4A at pages 30-35 and page

114.

Ark. Stat. Ann. Sections 43-603, 604, 605, and 606 pro-

vide as follows:

43-603. Preliminary examination. Where the ar-

rest is made in the county in which the offense is

charged to have been committed, the magistrate before

whom the defendant is carried, shall forthwith proceed

to an examination of the charge; and, if the offense

charged be a felony, shall commit, hold to bail or dis-

charge, as the case may be; or, if he have jurisdiction

to hear and finally try the charge, shall proceed to

final determination and judgment therein.

43-604. Authority of Magistrate. A magistrate of

the county in which a public offense has been commit-

4

ted, is authorized to examine the charge, and commit

to jail or hold to bail the person charged with its

commission.

43-605. Procedure. When a person, who has been

arrested, shall be brought, or in pursuance of a bail-

bond shall come, before a magistrate of the county in

which the offense is charged to have been committed,

the charge shall be forthwith examined; reasonable

time, however, being allowed for procuring counsel and

the attendance of witnesses. The magistrate before

commencing the examination, shall state the charge

and inquire of the defendant whether he desires the aid

of counsel, and shall allow a reasonable opportunity for

procuring it.

43-606. Subpoenas. The magistrate shall issue

subpoenas for witnesses either for or against the de-

fendant, which shall be executed by a peace officer,

and shall coerce their attendance by the same process

as in the circuit courts.

Ark. Stat. Ann. Sections 43-618 and 43-619 provide as

follows:

43-618. When Defendant Discharged. When the

examination is closed, if the magistrate is of opinion

that there is not sufficient cause for believing that the

defendant has committed a public offense, he shall

discharge the defendant from custody, and make an

entry thereof on the minutes.

43-619. When held for trial. If however, the

magistrate is of opinion, from the examination, that

there are reasonable grounds to believe the defendant

guilty of the offense charged, he shall be held for trial,

and committed to jail, or discharged on (on) bail, if

the offense be bailable.

Ark. Stat. Ann. Section 43-1203 provides as follows:

43-1203. Assignment of counsel. If any person

about to be arraigned upon an indictment for a felony,

be without counsel to conduct his defense, and shall be —

unable to employ any, it shall be the duty of the court

to assign him counsel, at his request, not exceeding two

(2) who shall have free access to the prisoner at all

reasonable hours.

The Rules of Criminal Procedure involved are Rules

8.1, 8.2, and 8.3 of the Arkansas Rules of Criminal Procedure

and can be found in Volume 4A at pages 451-452.

Rule 8.1 provides as follows:

Prompt First Appearance. An arrested person who

is not released by citation or by other lawful manner

shall be taken before a judicial officer without un-

necessary delay.

Rule 8.2 provides as follows:

Appointment of Counsel.

(a) An accused’s desire for, and ability to retain,

counsel should be determined by a judicial officer be-

fore the first appearance, whenever practicable.

(b) Whenever an indigent accused is charged

with a criminal offense and upon being brought before

any court, does not knowingly and intelligently waive

the appointment of counsel to represent him, the court

shall appoint counsel to represent him unless he is

charged with a misdemeanor and the court has de-

termined that under no circumstances will imprison-

ment be imposed as a part of the punishment if he is

found guilty.

(c) Attorneys appointed by municipal courts,

city courts, police courts, and justices of the peace may

receive fees for services rendered upon certification by

the presiding judicial officer if provision therefor has

been made by the county or municipality in which the

offense is committed or the services are rendered.

Rule 8.3 provides as follows:

Nature of First Appearance. Y

(a) Upon the first appearance of the defendant

the judicial officer shall inform him of the charge. The

judicial officer shall also inform the defendant that:

(i) he is not required to say anything, and that

anything he says can be used against him;

(ii) he has a right to counsel; and

(iii) he has a right to communicate with his

counsel, his family, or his friends, and that reasonable

means will be provided for him to do so.

(b) No further steps in the proceedings other

than pretrial release inquiry may be taken until the

defendant and his counsel have had an adequate op-

portunity to confer, unless the defendant has in-

telligently waived his right to counsel or has refused

the assistance of counsel.

(c) The judicial officer, if unable to dispose of

the case at the first appearance, shall proceed to decide

the question of the pretrial release of the defendant. In

7

so doing, the judicial officer shall first determine by an

informal, non-adversary hearing whether there is

probable cause for detaining the arrested person pend-

ing further proceedings. The standard for determining

probable cause at such hearing shall be the same as

that which governs arrests with or without a warrant.

QUESTION PRESENTED

1. Does the opinion and decision of the Arkansas

Supreme Court affirming the judgment of the Sebastian

County Circuit Court deprive the Petitioner of his right to

counsel at a critical stage in the proceedings when he was

denied appointed counsel at his preliminary hearing in the

Fort Smith Municipal Court?

STATEMENT

Petitioner, Rodney Dale Reeves, was charged by infor-

mation filed in Sebastian County Circuit Court on Novem-

ber 17, 1976, with Theft by Receiving in violation of Ark.

Stat. Ann. §41-2206, a Class “C” felony, and for being a

Habitual Criminal, Acts No. 280 of 1975, S 1001 (a section

now superseded by Act 474 of 1977, §4; Ark. Stat. Ann.

§41-1001, Repl. 1977). The information alleged that peti-

tioner on August 27, 1976, received a stolen 1973 Volks-

wagen automobile, the property of Dr. W. Ely Brooks.

On October 15, 1976, an information was filed in Fort

Smith Municipal Court charging Petitioner with the offense

of theft by receiving and an arrest warrant was issued there-

on. On October 16, 1976, Petitioner appeared in Municipal

Court (examining Court), was arraigned, found to be

indigent, was assigned the Public Defender as counsel, and

preliminary hearing was set for November 1, 1976.

On October 27, 1976, the Sebastian Prosecuting Attor-

ney filed a petition for a hearing on Petitioner’s indigency

status to determine if he was entitled to assigned counsel.

On November 1, 1976, a hearing was held in Municipal

Court on petitioner’s indigency status. He was represented

at this hearing by the Public Defender. The Municipal

Court found petitioner not to be indigent, directed that he

retain counsel of his choice and rescheduled the preliminary

hearing for November 8, 1976, later reset for November 16,

1976, to give Petitioner more time to hire counsel.

On November 16, 1976, Petitioner appeared without

counsel and advised the court he did not have the funds to

hire an attorney. The Municipal Court held the preliminary

hearing and Petitioner was not represented by counsel. No

Motion to Suppress evidence was filed. Petitioner was given

the right to cross-examine witnesses, and given the oppor-

tunity to testify (he declined). The State was represented

by the Prosecuting Attorney, it presented witnesses, and

Petitioner was bound over to Circuit Court for trial.

On March 24, 1977, Maupin Cummings, Circuit Judge

on Exchange, found the Petitioner to be indigent and ap-

pointed the Public Defender to represent him at trial. The

Public Defender advised the court of a conflict of interest

and on April 7, 1977, the Circuit Court appointed a private

member of the Arkansas Bar Association to represent

Petitioner at his trial.

On April 7, 1977, appointed counsel filed a Motion in

Circuit Court with Affidavit attached, requesting another

preliminary hearing where Petitioner would have the as-

sistance of counsel. On April 22, 1977, a hearing was held

on the motion, testimony was presented, arguments made

and the Circuit Court denied the Motion.

Trial was held on April 26-27, 1977, and Petitioner was

found guilty and given the maximum sentence of ten (10)

years and a fine of $10,000.00 by the jury. Judgment was

entered by the trial court on the verdict of the jury and

Petitioner perfected an Appeal to the Arkansas Supreme

Court.

On April 10, 1978, the Arkansas Supreme Court de-

livered its opinion and decision affirming the judgment of

the Sebastian County Circuit Court. The Supreme Court

held that Petitioner had failed to show any prejudice by

reason of the denial of counsel at his preliminary hearing.

Petitioner petitions this Court for a Writ of Certiorari

to review the final judgment of the Arkansas Supreme

Court.

10

ARGUMENT

Petitioner believes that the question presented herein

is substantial and requires plenary consideration and war-

rants briefs on the merits and oral argument for resolution

of the question. The reason the question is substantial is

set out below.

The opinion of the Supreme Court of Arkansas holding

that counsel was not required at a critical stage in the

proceedings (preliminary hearing) has confused the hold-

ings of this Court in Coleman v, Alabama, 399 U.S. 1, 90

S.Ct. 1999, 26 L. Ed. 2d 387 (1970) and Gerstein v. Pugh,

420 U.S. 103, 95 S.Ct. 854, 43 L, Ed. 2d 54 (1975).

In order to present this contention of confusion by the

Arkansas Supreme Court in applying these two cases it is

necessary to discuss general legal principles and the

principles of the two cases as they apply to the Arkansas

procedure,

An accused charged with a criminal offense has the right

to counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77

L. Ed. 158 (1932). Amendment 6 to the United States Con-

stitution and Article 2, Section 10 of the Arkansas Constitu-

tion provide that in all criminal prosecutions the accused

shall enjoy the right to have the assistance of counsel for

his defense. See, 21 Am. Jur. 2d Criminal Law, Section 318,

page 347. If the accused cannot afford his own privately

retained counsel he is entitled to the appointment of an

attorney. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792,

9 L. Ed. 2d 799 (1963) and Argersinger v. Hamlin, 407 U.S.

25, 92 S.Ct. 2006, 32 L. Ed. 2d 530 (1972).

The pertinent statute concerning assignment of counsel

is Ark, Stat. Ann, Section 43-1203. It provides that the court

11

has a duty to appoint counsel if an accused is not able to

employ his own attorney. The applicable rule concerning

appointment of counsel is Rule 8.2 of the Arkansas Rules of

Criminal Procedure.

A probable cause hearing for an arrested person is

provided for in Rule 8.3 of the Arkansas Rules of Criminal

Procedure which sets out the nature of an arrested person’s

first appearance before a magistrate. A preliminary

examination or hearing is provided for in Ark, Stat. Ann.

Sections 43-601 to 43-631.

Amendments 4 and 14 to the United States Constitution

require a probable cause hearing for arrested persons.

Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L. Ed. 2d 54

(1975). The holding of a preliminary hearing in Arkansas

under our applicable statutes (Ark. Stat. Ann. Sections 43-

601 — 43-631) is discretionary. Ellingberg v. State, 254 Ark.

199, 492 S.W.2d 904 (1973). However, if one is held, the

defendant is entitled to counsel as it is a critical stage in the

proceedings. Graves v. State, 256 Ark. 117, 505 S.W.2d 748

(1974), citing Coleman v. Alabama, 399 U.S. 1, 90 S.Ct.

1999, 26 L. Ed 2d 387 (1970).

Now, we come to the point where the Arkansas Su-

preme Court has confused this Court’s holdings in Coleman

and Gerstein.

Rule 8.2 of the Arkansas Rules of Criminal Procedure

appears to require the assignment of counsel to indigents at

their first appearance in court after being arrested. How-

ever, Rule 8.3 of the Arkansas Rules of Criminal Procedure

provides that the nature of the first appearance in court is

that the judicial officer shall first determine by an informal,

nonadversary hearing whether there is probable cause for

detaining the arrested person pending further proceedings.

Ee a ee

12

This hearing is required by the Fourth Amendment to the

United States Constitution, but is not a critical stage in the

prosecution that would require appointed counsel because

it is of a non-adversary character. Reeves v. State, 261 Ark.

384, 548 S.W.2d 822 (1977), citing Gerstein v. Pugh, 420

U.S. 103, 95 S.Ct. 854, 43 L. Ed. 2d 54 (1975) (The same

Rodney Dale Reeves as herein and the same proceedings).

Petitioner can agree with this limited holding concerning

the application of Rule 8.3. However, the proceedings in

this case developed further than the mere probable cause

hearing.

These proceedings developed to the preliminary hear-

ing stage of the proceedings as provided for in Ark. Stat.

Ann. Sections 43-605 to 43-631. This preliminary hearing

stage of the proceedings is a critical stage in the prosecu-

tion in Arkansas and would require the appointment of

counsel. Graves v. State, 256 Ark. 117, 505 S.W.2d 748

(1974), citing Coleman v. Alabama, 399 U.S. 1, 90 S.Ct.

1999, 26 L. Ed. 2d 387 (1970).

The preliminary examination is a formal hearing as it

is in Alabama. Ark. Stat. Ann. Section 43-605 provides that

an accused has the right to the aid of counsel; Ark. Stat.

Ann. Section 43-606 provides that the magistrate shall issue

subpoenas for or against the defendant; Ark. Stat. Ann. Sec-

tion 43-607 limits the number of witnesses; Ark. Stat. Ann.

Section 43-608 provides for continuances; Ark. Stat. Ann.

Sections 43-615 and 43-616 provide for the exclusion and

separation of witnesses from the courtroom; Ark. Stat. Ann.

Section 43-617 provides that the names and residences of

witnesses be stated by the magistrate; Ark. Stat. Ann. See-

tion 43-618 provides that the defendant will be discharged

if the magistrate is of the opinion that there is not sufficient

13

cause for believing the defendant has committed a public

offense; Ark, Stat. Ann. Section 43-619 provides that if the

magistrate is of the opinion that there are reasonable

grounds to believe the defendant guilty of the offense

charged he shall be held for trial; Ark. Stat. Ann. Section

43-621 provides for commitment to jail or bail after exami-

nation; and, Ark. Stat. Ann. Sections 43-626 — 43-627

provide for the preservation of the preliminary hearing

testimony for possible use later under certain circumstances.

It can be seen that this is a fomal, critical stage in the

proceedings. Although it is similar to a probable cause

hearing, it is a subsequent, formal, adversary type proceed-

ing that requires counsel under the 6th and 14th Amend-

ments to the United States Constitution and Article 2,

Section 10 of the Arkansas Constitution because it is a

critical stage in the prosecution. (Coleman v. Alabama,

supra).

The Fourth Amendment ¢ es not require counsel at a

probable cause hearing. (Gerstein v. Pugh, supra). The

Sixth and Fourteenth Amendments require counsel at a

preliminary hearing. (Coleman v. Alabama, supra). The

Supreme Court of Arkansas has confused the two proceed-

ings and denied Petitioner his right to appointed counsel

at this critical stage in the proceedings.

In this critical stage in the prosecution, if the Petitioner

had been provided counsel, he could have filed and pre

sented a Motion to Suppress evidence, made an intelligent

decision on whether to testify or not, and made inquiries in

line with the reasons set out in Coleman, supra. Petitioner

was denied this right by all tiers of the Arkansas Courts.

(Municipal, Circuit and Supreme) The right should not be

denied by this Court.

~~ —-—- >

-_—

14

CONCLUSION

Petitioner submits that for the above reasons jurisdic-

tion should be noted and the Petition accepted for decision.

Respectfully submitted,

Rosert S. BLATT

Attorney at Law

P.O. Box 1825

Fort Smith, Arkansas

Attorney for Petitioner

15

APPENDIX “A”

RODNEY DALE REEVES V. STATE OF ARKANSAS

CR-77-220

Opinion delivered April 10, 1978

(Division 1)

Appeal from

Sebastian Circuit Court, Fort Smith District

JOHN HOLLAND, Judge; Affirmed

GEORGE ROSE SMITH, Justice

The appellant was charged with the theft of a 1973

Volkswagen car by receiving — an offense that is essentially

what was formerly known as receiving stolen property.

Ark. Stat. Ann. §41-2206 (Repl. 1977). Upon trial by jury

he was found guilty and was sentenced, as a habitual

offender, to 10 years’ imprisonment and to a $10,000.00 fine.

Several points for reversal are argued by court-appointed

counsel.

The State’s proof showed that on the night of August

27, 1976, the appellant Reeves and Mike Lovell, a police

informant, drove together in Reeves’s car from Fort Smith

to Fayetteville for the purpose of stealing a Volkswagen. In

Fayetteville the two men found a car of the kind that

Reeves wanted. Lovell actually stole the car and followed

Reeves back to Fort Smith. There they drove the Volks-

wagen into a garage next to Reeves’s residence and used

specialized tools to remove the several V.I.N.’s (vehicle

identification numbers) from the stolen car. Lovell was

paid $150 for his assistance when he left at about dawn.

The police obtained a search warrant and searched the

premises, finding the vehicle in question and several other

16

Volkswagens from which the V.I.N’s had been similarly

removed.

It is first argued that the court should have granted a

defense motion for a month’s continuance and a defense

motion for a second preliminary hearing. Our difficulty

with respect to both motions arises from the absence of any

facts tending to show why the court abused its discretion

in denying the motions.

Neither motion was supported by the proffer of testi-

mony. Counsel simply argued that 18 days was not suf-

ficient time for him to prepare the case for trial and that a

second preliminary hearing should be ordered because

Reeves, as a result of having been found not to be an

indigent, was not represented by counsel at the first pre-

liminary hearing. It is argued here, as it was in the court

below, that the issues in the case were so complex that it

could not be properly prepared for trial in 18 days and that

evidence favorable to Reeves might have been developed

at a second preliminary hearing. We have, however, no

facts to go on except the record of the actual trial as ab-

stracted by counsel. That record indicates that Reeves

received a fair trial and was well represented. In matters of

this kind, turning essentially upon the many practical con-

siderations that must be taken into account in setting a case

for trial, we must depend upon the sound judgment of the

trial court unless a clear abuse of discretion is made to

appear. That showing has not been made in this case.

It is next argued that the court should not have allowed

the State to prove Reeves’s commission of other offenses;

that is, that the officers found on Reeves’s premises other

Volkswagens from which the V.I.N.’s had been removed.

The State did not actually try to show that the other ve-

17

hicles had been stolen, though no doubt the jury so inferred.

Even so, the proof was admissible as tending to show

Reeves’s knowledge that the 1973 Volkswagen in question

had been stolen. Evidence of other crimes may be admis-

sible to show knowledge. Ark. Stat. Ann. §28-1001, Rule

404 (b) (Supp. 1977). It makes no difference that the

prosecution had already shown by a witness that Reeves

had participated in the theft of the Volkswagen. The State

was entitled to prove its case as conclusively as it could.

That Reeves possessed other vehicles from which the

V.LN.’s had been removed in a similar manner was compe-

tent evidence to suggest to the jury that he had so removed

the V.I.N.’s from the Volkswagen in question for the

purpose of preventing its possible identification as stolen

property; in short, he must have known that it was stolen.

Third, the appellant questions the admissibility of the

State’s proof of previous convictions under the habitual

criminal statute. Three of the four convictions that were

proved showed that the sentences had been suspended. It is

argued that such a judgment is not a “conviction” within

the meaning of the habitual criminal law.

In Rogers v, State, 260 Ark. 232, 538 S.W.2d 300 (1976),

we held that under the habitual criminal statute in effect

in 1975, a judgment imposing a suspended sentence was

admissible as a conviction. Act 228 of 1953, as amended.

That statute was superseded by the Criminal Code, which

became effective on January 1, 1976, under which the case

at bar was tried. Act 280 of 1975, §1001 (a section now in

turn superseded by Act 474 of 1977, §4; Ark. Stat. Ann.

§41-1001 [Repl. 1977]). We do not see, however, any such

difference between the language of the statute construed in

the Rogers case and that of the 1975 Code as to indicate a

18

change in the legislative intention. On this point counsel

for the appellant argues that in Rogers we relied in part

upon a reference in the 1953 statute’s emergency clause to

“persons committing more than one felony,” a phrase not

to be found in the 1975 Code. The Code, however, was a

comprehensive act made up of hundreds of sections. There

was no reason for the legislature to repeat the quoted

phrase in its emergency clause. There is, however, a reason

for us to hold, as we do, that if the legislature meant for its

earlier language to include judgments imposing a suspend-

ed sentence, as we decided in Rogers, then the legislature

had the same intention in re-enacting substantially the

same language in the Criminal Code. It may be noted, in

passing, that the 1977 statute, not applicable to this case,

may have adopted the view now urged upon us by this

appellant. See Ark. Stat. Ann. §41-1001 (Repl. 1977).

It is also argued that the State’s proof of two previous

convictions, both in Sebastian Circuit Court, was inadmis-

sible, because the circuit clerk’s testimony about them was

based upon the court’s docket entries. It is true that a

docket notation is not the entry of a final judgment. Herrod

v. Larkins, 183 Ark. 509, 36 S.W.2d 667 (1931). The habitual

criminal law applicable to this case provides, however, that

a previous conviction may be proved by any evidence that

satisfies the trier of fact that the defendant was convicted.

Act 280 of 1975, §1003. Under the Uniform Rules of Evi-

dence, preliminary questions about the admissibility of

evidence are decided by the trial court. Ark. Stat. Ann.

§28-1001, Rule 104 (a) (Supp. 1977). Under Rule 803 (8)

of those rules, a record of a public office setting forth its

regularly conducted and regularly recorded activities is not

hearsay (which was the objection made in the trial court).

Here the trial court decided that the testimony of its own

19

clerk, based upon its own docket entries, was proper for

the jury’s consideration. The Uniform Rules of Evidence are

to be construed to the end that the truth may be ascertained

and proceedings justly determined. Rule 102. Here there

is no suggestion whatever that the docket entries did not

correctly reflect the court’s judgments in the earlier cases

in which Reeves was convicted. We find no sound basis for

saying that the trial judge’s ruling was wrong.

Other minor points are argued, but they are without

merit.

Affirmed.

We agree. Harris, C.J., and Hickman and Howard, JJ.

20

APPENDIX “B”

RODNEY DALE REEVES V. STATE OF ARKANSAS

CR-77-220

NOTICE OF FILING FOR

WRIT OF CERTIORARI TO REVIEW

Comes the Appellant-Petitioner, Rodney Dale Reeves,

and hereby gives notice of filing for Writ of Certiorari to

review the final decision and opinion delivered on April 10,

1978, by the Arkansas Supreme Court affirming the Judg-

ment of the Sebastian County Circuit Court, dated April

26, 1977, and designates the entire Judgment, Opinion and

Decision of the Arkansas Supreme Court to be reviewed by

Certiorari.

The review by Certiorari is taken to the United States

Supreme Court under the provisions of 28 U.S.C, §1257(3).

/s/ Robert S. Blatt

CERTIFICATE OF SERVICE

I, Robert S. Blatt, hereby certify that I have served a

copy of the foregoing Notice of Filing for Writ of Certiorari

to Review on the Attorney General by mailing a copy of

same to Honorable Bill Clinton, Justice Building, Little

Rock, Arkansas 72201.

/s/ Robert S. Blatt

Filed on May 15, 1978, in the Arkansas Supreme Court.

21

APPENDIX “C”

RODNEY DALE REEVES V. STATE OF ARKANSAS

CR-77-220

NOTICE OF APPEAL

Comes the Defendant-Appellant, Rodney Dale Reeves,

and hereby gives notice of appeal from the decision and

opinion delivered on April 10, 1978, by the Arkansas Su-

preme Court, affirming the Judgment of the Sebastian

County Circuit Court, Fort Smith District, dated April 26,

1977, and designates the entire Judgment, Opinion and

Decision of the Arkansas Supreme Court as appealed from.

The appeal is taken to the United States Supreme Court

under the provisions of 28 U.S.C, $1257.

/s/ Robert S. Blatt

CERTIFICATE OF SERVICE

I, Robert S. Blatt, hereby certify that I have mailed a

copy of this Notice of Appeal to Appellee, State of Arkansas,

by mailing a copy to its counsel of record, Attorney General

of Arkansas, by depositing same in the United States Post

Office, with first class postage, prepaid, to this address,

Justice Building, Little Rock, Arkansas 72201.

/s/ Robert S. Blatt

Filed on May 15, 1978, in the Arkansas Supreme Court.

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