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STATE v. MONTAGUE4/20/2000
The State brings this appeal as a petition for review of the decision of the Arkansas Court of Appeals in Montague v. State, 68 Ark. App. 145, 5 S.W.3d 101 (1999), in which the conviction and sentence of appellee Jimmie Don Montague for driving while intoxicated was set aside on the
grounds that his conviction for both negligent homicide and DWI violated the double-jeopardy provisions of the Arkansas and United States Constitutions. The court of appeals reached this issue notwithstanding Montague's failure to raise this argument to the trial court below, and the State sought review of this decision on the grounds that it conflicts with our prior decisions that double-jeopardy claims are not preserved for appeal if they are not raised below. We granted appellant's petition to review. When we review a decision of the Court of Appeals we review the case as though it had been originally filed in this court. Maloy v. Stuttgart Memorial Hosp., 316 Ark. 447, 872 S.W.2d 401 (1994), Patterson v. State, 267 Ark. 436, 591 S.W.2d 356 (1979). We agree with the State's contention and affirm the conviction and sentence below.
On the night of July 17, 1997, Montague went to a bar in Fort Smith, where he consumed a number of beers. He was returning home at 5:35 a.m. when he fell asleep at the wheel and crossed the center line, striking Nick Elliott's car head-on. Elliott was killed. Police investigators took the defendant to the hospital, where an hour after the accident his blood-alcohol level was .12%. A breath test taken an hour following that test showed a blood alcohol content of .10%. The State charged the defendant with manslaughter and DWI, and a jury convicted him of the lesser-included offense of negligent homicide, as well as the DWI. The jury set the sentence for DWI at twelve months in jail and assessed a $1000 fine and court costs. The jury set the sentence for negligent homicide at six years but recommended that the sentence be suspended, and also assessed a $5000 fine and court costs for that offense. The trial judge sentenced him accordingly and ordered that the sentences run consecutively. It is uncontested that the defendant did not challenge his sentence on the grounds of double jeopardy below.
The defendant appealed his sentence to the court of appeals on the grounds that in Tallant v. State, 42 Ark. App. 150, 856 S.W.2d 24 (1993), the court had held that a driver could not be convicted of both negligent homicide and DWI because the commission of one offense could not be established without the proving of the other. The State responded that the error was not preserved for appellate review because Montague had not raised the issue to the trial court. As pointed out by the State, we note that the defendant's counsel had specifically sought to dissuade the jury from recommending a term of incarceration in the Department of Correction for negligent
homicide by arguing for a term in the county jail for driving while intoxicated. The jury responded to this invitation by sentencing the defendant to one year on the DWI while recommending suspension of the six-year sentence for negligent homicide.
Notwithstanding the defendant's failure to argue a violation of the double jeopardy provision, the court of appeals reached the merits of this case, basing its opinion upon our decision in Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992), where we held that allegations of void or illegal sentences would be treated similarly to problems of subject-matter jurisdiction: by reviewing such allegations whether or not an objection was made in the trial court. Id. Treating the sentence as void or illegal on double jeopardy grounds fails to consider a series of our cases in w
Page 1 2 Arkansas DUI Attorneys
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