Holt v. State , 300 Ark. 300 ( 1989 )

Tom Glaze, Justice.

This appeal is from the appellant’s conviction of driving while intoxicated, fourth offense. Appellant received the minimum sentence provided by law. He raises six points for reversal in this appeal, but appellant insists in his brief and oral argument that his request is limited to reversing and dismissing the state’s case.¹ If this court’s review should result in a reversal and remand of the case, appellant requests that we affirm rather than return the case for retrial. Appellant concedes, for these purposes, that the state possesses sufficient evidence to prove the DWI, fourth offense if the case is retried.

Obviously, appellant wishes to hedge or restrict his appeal to two possibilities: dismissing his conviction or alternatively retaining his minimum sentence previously imposed. We are unable to accommodate such a conditional appeal. As provided in A.R.Cr.P. Rule 36.25, a conviction shall be reversed and a new trial ordered where we find that the conviction is contrary to the Constitution, the laws of Arkansas or for any reason determine that the appellant did not have a fair trial. Where appropriate, we reverse the conviction and order the appellant discharged. Our review of the issues raised in this appeal reflect only one which has merit, and that issue, mentioned below, would require a retrial.

We are unaware of any rule or precedent that would permit this court to affirm a conviction when our review actually mandates a reversal and remand of the matter. To adopt such a rule, we believe, would be improper and an abdication of this court’s clear duty. In addition, we are convinced that if the court provided for such conditional or limited appeals, an abuse of the appellate process undoubtedly would result. In criminal cases, this would especially be true since the state rarely is the appellant and the defendant, who is convicted, would be placed in a position of appealing regardless of whether he or she had a meritorious

point for reversal since the defendant would have nothing to lose by doing so. In sum, because the appellant requests this court to affirm this case unless the court can say it can be dismissed, we will not address his arguments on appeal and must affirm the trial court.

While we are unable to reach the issues in this appeal on the conditions set by appellant, we are obliged to point out that the state in this matter has requested that we reconsider our decision in Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). The state also cites our recent holding in Prichard v. State, 300 Ark. 10, 775 S.W.2d 898 (1989), and suggests it conflicts with the holding in Peters. The state argues that, in view of these two decisions, there is a conflict between the manner in which prior convictions are handled in controlled substances and DWI cases. The narrow issue is whether the prior convictions in these type cases should be determined by the trial court or the jury. While we recognize the state raises a viable issue, we are unable to address it here because of the manner in which this case was presented and disposed of on appeal. Consequently, we must defer addressing and deciding this important issue to a future case when it can be fully presented and argued.

For the reasons given above, we affirm.

Newbern, J., concurs. Purtle, J., dissents.

1 The dissent strangely alludes to members of the court in oral argument questioning appellant’s counsel on his unusual request in his written brief that he wanted the court to affirm even though it might find error which would require reversal and a retrial. The dissent’s apparent suggestion is that the court should not ask questions that pertain to requests or arguments contained in the parties’ briefs. To accept such a suggestion would be strange indeed. Thus, we reject that idea.