State v. Brown , 283 Ark. 304 ( 1984 )

Webb Hubbell, Chief Justice.

Appellee Levert Brown was charged with violating Act 549 of 1983 [Ark. Stat. Ann. §§ 75-2501 — 75-2533 (Supp. 1983)], driving while intoxicated (D.W.I.), fourth offense. The Circuit Court granted appellee’s pre-trial motion to suppress evidence of his three prior D.W.I. convictions because in those earlier proceedings he was not represented by counsel. The court then refused to grant appellant’s motion to amend the charges against appellee to D. W.I., first offense, and granted appellee’s motion to dismiss the case. We affirm the suppression of the prior convictions, but we reverse the court’s denial of the motion to amend.

The first issue is whether Baldasar v. Illinois, 446 U.S. 222 (1980) bars prior uncounseled misdemeanor convictions from being used to enhance punishment for a subsequent offense. In Baldasar the prosecution sought the introduction of a prior uncounseled misdemeanor theft conviction to support the enhancement of a second misdemeanor theft to a felony. In a plurality opinion, the United States Supreme Court held that while an uncounseled misdemeanor conviction is valid, if the offender is not incarcerated, such a conviction may not be used under an enhancement statute to convert a subsequent misdemeanor into a felony punishable by a prison term.

This case presents a similar situation. The prosecutor sought the admission of three prior D.W.I. convictions which by his own admission were obtained in uncounseled proceedings. Section 4 of Act 549 sets the prison term for violation of Section 3 of the Act. The first offense is punishable by imprisonment from twenty-four hours to one year; the second offense, imprisonment from seven days to one year; the third offense, imprisonment from ninety days to one year; the fourth offense, imprisonment from one to six years. Appellant argues that the Baldasar decision is a mere plurality opinion and that its reasoning should not bind this court, but a fourth offense of the Arkansas D.W.I. law imposes an even lengthier prison term than the statute in Baldasar, and the holding still controls the facts in this case. We affirm the trial court’s suppression of the three uncounseled prior convictions.

After the trial court suppressed defendant’s uncounseled prior convictions, the state sought to amend the information to D.W.I., first offense. Neither appellant or appellee raised the constitutionality of Section 8 at the trial court or an appeal, so those issues will not be considered. Griggs v. State, 280 Ark. 339, 658 S.W.2d 371 (1983).

The court denied the state’s motion hold that Section 8 of Act 549 prevents the charge from being reduced. Section 8 states: “Persons arrested violating Section 3 of this Act shall be tried on such charges or plead to such charges and no such charges shall be reduced.” Section 3 provides: (a) “It is unlawful and punishable in this Act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.”

The trial court found the word “reduced” to mean a reduction in the penalty provisions of the statute. But Section 8 refers to Section 3 of the Act. The penalty provisions are found in Sections 4 and 5 of the Act.

A particular provision of a statute must be construed with reference to the statute as a whole. 2A Sutherland, Statutory Construction § 46.05. The “no reduction” language of Section 8 applies to the reduction of the offense, such as to reckless driving, not to the number of offenses.

The state is entitled to amend an information to conform to the proof when the amendment does not change the nature or degree of the alleged offense. Ark. Stat. Ann. § 43-1024 (Repl. 1977); Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). Such authorization simplifies procedure and.eliminates some technical defenses by which an accused might escape punishment. Underwood v. State, 205 Ark. 864, 171 S.W.2d 304 (1943). The change sought by the state would not have changed the nature or degree of the offense but would merely have authorized a less severe penalty. See Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977) and Silas v. State, 232 Ark. 248, 337 S.W.2d 644 (1960). The trial court erred in refusing to allow the state to amend the information.

Affirmed in part, reversed in part.

Purtle, J., dissents.