State v. Sola9/18/2003
REVERSED AND REMANDED.
This is an appeal brought by the State of Arkansas from a judgment for DWI, third offense, involving appellee Joseph K. Sola. The State appeals on the sole issue that the circuit court erred when it found that a DWI offense, which occurred on July 11, 2001, was not admissible for purposes of determining Sola's sentence for a June 14, 2001 DWI offense. We agree with the State and reverse the judgment of the circuit court. We remand the matter for further proceedings.
The facts of this case reveal that Sola has been arrested four times for driving while intoxicated and convicted and sentenced for each offense: on May 12, 1998 (convicted on October 21, 1998); on October 7, 1998 (convicted on January 6, 1999); on June 14, 2001 (convicted on September 13, 2002); and on July 11, 2001 (convicted on September 26, 2001).
On November 9, 2001, the prosecuting attorney brought charges in Pope County against Sola for DWI, fourth offense, based on the June 14, 2001 arrest. According to the information, the charge was a felony with a possible sentence of one-to-six years in prison and a $900-to-$5,000 fine. A bench warrant then issued for Sola. On February 13, 2002, Sola moved for discovery. On April 8, 2002, both parties filed for a continuance of the trial. On July 25, 2002, the State moved for a continuance, and on August 23, 2002, Sola moved for a continuance.
On August 30, 2002, Sola moved to suppress the conviction relating to the July 11, 2001 DWI offense and asked the circuit court to suppress evidence relating to that offense. The circuit court found that Sola's July 11, 2001 DWI offense should not be received as evidence by the court for purposes of sentencing under Ark. Code Ann. § 5-65-111(b)(3) (Supp. 2001) and granted the motion.
On September 11, 2002, the circuit court conducted a trial relating to the June 14, 2001 DWI arrest, at the conclusion of which the court found Sola guilty of DWI, third offense. The court ordered Sola to serve 120 days in jail and pay a fine of $2,500.
I. Jurisdiction
We first address whether this court has jurisdiction of this State appeal. The State's right to appeal in criminal cases is not derived from either the United States or Arkansas Constitution and is not a matter of right. State v. Ashley, 347 Ark. 523, 66 S.W.3d 563 (2002). Rather, this court has set out the parameters for State appeals in our appellate rules:
(b) Where an appeal, other than an interlocutory appeal, is desired on behalf of the state following either a misdemeanor or felony prosecution, the prosecuting attorney shall file a notice of appeal within thirty (30) days after entry of a final order by the trial judge.
(c) When a notice of appeal is filed pursuant to either subsection (a) or (b) of this rule, the clerk of the court in which the prosecution sought to be appealed took place shall immediately cause a transcript of the trial record to be made and transmitted to the attorney general, or delivered to the prosecuting attorney, to be by him delivered to the attorney general. If the attorney general, on inspecting the trial record, is satisfied that error has been committed to the prejudice of the state, and that the correct and uniform administration of the criminal law requires review by the Supreme Court, he may take the appeal by filing the transcript of the trial record with the clerk of the Supreme Court within sixty (60) days after the filing of the notice of appeal.
Ark. R. App. P.--Crim. 3(b) and (c).
In this appeal, the State contests the manner in which the circuit court determined the number of DWI offenses for purposes of s
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