{ "id": 1869810, "name": "David ROGERS v. STATE of Arkansas", "name_abbreviation": "Rogers v. State", "decision_date": "1987-11-02", "docket_number": "CR 87-126", "first_page": "414", "last_page": "417", "citations": [ { "type": "official", "cite": "293 Ark. 414" }, { "type": "parallel", "cite": "738 S.W.2d 412" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "284 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1878611 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/284/0247-01" ] }, { "cite": "437 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176664 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "18" }, { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/us/437/0001-01" ] }, { "cite": "229 Cal. Rptr. 289", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1986, "opinion_index": 0 }, { "cite": "184 Cal. App. 3d 895", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2186558 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/cal-app-3d/184/0895-01" ] }, { "cite": "174 Ga. App. 71", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 8855256 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "71" }, { "page": "200", "parenthetical": "emphasis by court" }, { "page": "71-72" } ], "opinion_index": 0, "case_paths": [ "/ga-app/174/0071-01" ] }, { "cite": "40 Wis. 2d 516", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8671084 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/wis-2d/40/0516-01" ] }, { "cite": "70 N.E. 955", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1904, "opinion_index": 0 }, { "cite": "70 Ohio St. 121", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 963461 ], "year": 1904, "opinion_index": 0, "case_paths": [ "/ohio-st/70/0121-01" ] }, { "cite": "227 P. 613", "category": "reporters:state_regional", "reporter": "P.", "year": 1924, "opinion_index": 0 }, { "cite": "30 N.M. 40", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841225 ], "year": 1924, "opinion_index": 0, "case_paths": [ "/nm/30/0040-01" ] }, { "cite": "225 Ark. 495", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1642926 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/ark/225/0495-01" ] } ], "analysis": { "cardinality": 433, "char_count": 6308, "ocr_confidence": 0.904, "pagerank": { "raw": 2.0453727209659046e-07, "percentile": 0.754736666114511 }, "sha256": "f2f82e6ce4db2b805532bd1f87b03dba6721833b29e4797d38d3daad35fafb1e", "simhash": "1:337e964e62842812", "word_count": 1067 }, "last_updated": "2023-07-14T18:33:58.592079+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "David ROGERS v. STATE of Arkansas" ], "opinions": [ { "text": "Robert H. Dudley, Justice.\nThe issue in this case involving the interpretation of the Omnibus DWI Act is when does a prior \u201coffense\u201d occur for purposes of penalty enhancement. A stipulation of facts between the appellant and the State shows that on May 11, 1986, the appellant operated his vehicle while intoxicated in violation of Ark. Stat. Ann. \u00a7 75-2503(a) (Supp. 1985). He had two prior convictions, one conviction on June 22, 1984, and the other on July 17,1985. The stipulation does not include the dates on which the prior offenses were committed. The trial court found the appellant guilty of \u201cthe third offense occurring within (3) three years of the first offense.\u201d Ark. Stat. Ann. \u00a7 75-2504(b)(2) (Supp. 1985). We reverse because the State did not show that all three of the violations occurred within three years of the first violation. Instead, it only showed that all three convictions occurred within three years.\nThe State contends that an offense occurs on the date of the conviction, because the word \u201coffense\u201d is often equated with the word \u201cconviction.\u201d It is true that \u201coffense\u201d is often held to mean \u201cconviction.\u201d See Nail v. State, 225 Ark. 495, 283 S.W.2d 683 (1955); see also State v. Snyder, 30 N.M. 40, 227 P. 613 (1924); Carey v. State, 70 Ohio St. 121, 70 N.E. 955 (1904); State v. Midell, 40 Wis. 2d 516, 162 N.W.2d 54 (1968). However, such cases deal with the problem that an act cannot be considered an \u201coffense\u201d until there has been a conviction, and they simply do not address the issue of when an \u201coffense\u201d occurs. These are two different concerns, and the distinction is best illustrated by employing a two-step analysis. The first step is that the act in issue is not elevated to the status of an \u201coffense\u201d until there is a conviction. The second step is that once a conviction is shown, it must relate back and the act is deemed an \u201coffense\u201d from the moment of commission. Therefore, the offense occurs when the criminal act is committed.\nThe Georgia Court of Appeals has addressed this same issue directly. In Hardison v. Boyd, 174 Ga. App. 71, 329 S.E.2d 198 (1985), the appellee pleaded guilty to driving under the influence of alcohol and was declared an habitual violator. The court quoted the statute involved in the case as follows:\n\u201cWhen the records of the department disclose that any person has been convicted of a violation of Chapter 6 of this title . . ., of an offense occurring on or after January 1, 1976, which record of conviction, when taken with and added to previous convictions of such persons of offenses occurring within five years prior to the date of such offenses, as contained in the files of the department, reveals that such person is an habitual violator as defined in subsection (a) of this Code section, the department shall forthwith notify such person that upon the date of notification such person has been declared by the department to be an habitual violator. . . .\u201d\nId. at 71, 329 S.E.2d at 200 (emphasis by court). The court then rejected the contention that it was the date of conviction rather than the date of the violation which controlled, holding:\nIt is clear from the language quoted above that the date of the offense is the date to be used for the purpose of determining habitual violator status under that section. Were it otherwise, a defense attorney could thwart the intent of the statute by securing a continuance, or a series of continuances, to take an impending conviction outside the five-year period provided in the statute. ... We cannot condone an interpretation of the statute which would render it vulnerable to such manipulation by the defendant.\nId. at 71-72, 329 S.W.2d at 200. The California Court of Appeal reached a similar decision in People v. Albitre, 184 Cal. App. 3d 895, 229 Cal. Rptr. 289 (1986).\nWe think such reasoning is sound. The General Assembly surely did not intend to allow a defense attorney to reduce an enhanced penalty for third offense driving while intoxicated to a second offense merely by obtaining continuances so that the last conviction would fall outside the three year period. Similarly, it surely did not intend that delay due to court congestion might reduce the degree and penalty. Accordingly, we hold that the dates the offenses were committed are the determinative dates.\nThe appellant also contends that \u201c [t] he State of Arkansas failed to introduce evidence of the dates of the prior offenses and therefore should not be allowed to have a remand in this case.\u201d In Burks v. United States, 437 U.S. 1, 18 (1978), the United States Supreme Court held that \u201cthe Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient\u201d to support a guilty verdict. However, the Court stated that a retrial is permitted to rectify trial error, noting,\nIn short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect instructions, or prosecutorial misconduct.\nId. at 15; see also Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).\nThe problem with the appellant\u2019s argument is one of mischaracterization. The issue here is not one of insufficient evidence but one of trial error. In this case, the trial court ruled that the date of the conviction (not the date of commission of the act) controlled. Therefore, under the trial court\u2019s ruling, the State was not required to produce evidence of the dates of the prior acts because, at that point, evidence of such dates would have been irrelevant. The State\u2019s failure to produce evidence of the dates of the acts stemmed directly from the trial court\u2019s erroneous ruling, and remand should be allowed because of the error.\nReversed and remanded.", "type": "majority", "author": "Robert H. Dudley, Justice." } ], "attorneys": [ "Robert A. Newcomb, for appellant.", "Steve Clark, Att\u2019y Gen., by; Joseph V. Svoboda, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "David ROGERS v. STATE of Arkansas\nCR 87-126\n738 S.W.2d 412\nSupreme Court of Arkansas\nOpinion delivered November 2, 1987\n[Rehearing denied December 7, 1987.]\nRobert A. Newcomb, for appellant.\nSteve Clark, Att\u2019y Gen., by; Joseph V. Svoboda, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0414-01", "first_page_order": 450, "last_page_order": 453 }