#### Robert Daniel SMITH v. STATE of Arkansas

CR 74-159

520 S.W. 2d 301

Opinion delivered March 10, 1975

Harold L. Hall, Public Defender, by: Robert L. Lowery, Dep. Public Defender, for appellant.

Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.

Conley Byrd, Justice.

The sole issue on this appeal is whether appellant Robert Daniel Smith, an indigent, is entitled to credit for jail time served by him prior to conviction.

The record shows that appellant was held in custody from December 8, 1973, until the date of his trial before the court on January 11, 1974. The record also shows that appellant was sentenced and committed to the penitentiary for 15 years upon a charge of robbery with a firearm without *782being given the opportunity to show why he should not receive the full 15 year sentence.

Thus unlike Coleman v. State, 257 Ark. 538 518 S.W. 2d 487 (1975), the record shows appellant was not given the right of allocution and consequently, we cannot indulge in the presumption that the trial court did its duty according to law or that it exercised its discretion pursuant to Ark. Stat. Ann. § 43-2813 (Supp. 1973), in denying jail time, Shelton v. State, 255 Ark. 932, 504 S.W. 2d 348 (1974). Consequently, this case seems to be controlled by Smith v. State, 256 Ark. 425, 508 S.W. 2d 54 (1974), where we pointed out that the denial of jail time solely because of the indigency of the defendant amounts to an unconstitutional discrimination based on wealth, absent some “compelling government interest.”

Reversed and remanded with directions to give credit for jail time.