text:
    Steve STEVENSON and Petro Stevenson v. UNION STANDARD INS. CO. and Helena Ins. & Real Estate Co.
    87-312
    746 S.W.2d 39
    Supreme Court of Arkansas
    Opinion delivered March 7, 1988

      Gill, Johnson & Gill, by: Kenneth Johnson, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: Glenn Jones, for appellee Union Standard Insurance Company.

      Barrett, Wheatley, Smith & Deacon, for appellee Helena Insurance and Real Estate Company.
   David Newbern, Justice.

The appellants, Steve and Petro Stevenson, sued the appellees, Union Standard Ins. Co. (Union) and Helena Ins. & Real Estate Co., (Helena) for the tort of bad faith resulting from their alleged intentional failure to pay the Stevensons’ insurance claims. In this appeal from a summary judgment in favor of Union and Helena, the Stevensons contend there was a fact question remaining, and thus summary judgment was improper. We agree with the trial court’s conclusion to the contrary and thus affirm.

The Stevensons owned two businesses, a food mart and a disco. Through Helena, they purchased fire insurance for the businesses. Policies were written through which Union covered the building, contents, and business interruption with respect to the food mart, and business interruption with respect to the disco. The disco building and contents were covered by another carrier.

A fire occurred at the food mart on February 27, 1982. An adjuster worked the claim promptly, and by March 5, 1982, estimates had been obtained. On May 6, 1982, two checks representing partial payment for the building and contents were tendered. The affidavit of Petro Stevenson stated that he rejected the checks at first because they did not correspond to the figures he had presented, and the checks contained no notations as to what they were for. He said Mr. Runyan, the adjuster, told the Stevensons that he had been instructed by Union to reduce their loss of earnings, or business interruption, payment if they did not accept the checks. They allegedly reported this to a Helena representative who convinced them to accept the checks by assuring them he would recommend to Union that they not be penalized on their business interruption coverage. The affidavit also stated that there was a lengthy dispute with the adjuster about $300 which was a bill for electrical work which had been included in the original building repair bill.

In addition, there was a misunderstanding with the adjuster over whether the check for contents included only inventory or included both inventory and equipment. By June 18, 1982, the adjuster had fixed figures for the total losses on the building and the contents, according to the reports he submitted to Union. There remained, however, a dispute over the business interruption coverage. The Stevensons contended that they were entitled to $3,000 per month up to a maximum of $12,000. The adjuster contended they were entitled to 25 % of their proven loss of profits up to $3,000 per month. There was a question whether the Stevensons were required to submit a profit and loss statement. They submitted such a statement in August, 1982, and an offer of $5,133.20 was made to them on August 13, 1982, to settle the business interruption claim. They rejected a check for $ 15,556.31 which included the additional amounts for the contents and building losses in addition to the business interruption loss.

In September, 1982, the Stevensons filed a complaint with the insurance commissioner, and in November, Union offered them $23,000 in full settlement of their claim. By then, the food mart was out of business, and the Stevensons rejected the offer.

The disco was damaged by fire in April, 1982. Exhibits showed that Union promptly notified Helena that the coverage violated its policy against insuring dance halls. When the Steven-sons spoke with a Helena representative, they were made aware there was a problem but assured it would be worked out. They were not told that Union had denied coverage. When they spoke with a Union representative in September, 1982, they were told Union rejected coverage, and it was suggested they take the matter up with Helena.

There was the same sort of misunderstanding with respect to the business interruption coverage for the disco as had occurred in the negotiations over coverage of the food mart. The Stevensons wanted $9,000, or $3,000 per month for the period the disco was closed.

In November, 1982, along with its draft of $23,000 on the food mart claim, Union tendered $10,000 on the disco claim. By then the disco was out of business again, and the Stevensons rejected the tender. They filed suit against Union and Helena. The complaint contained two counts. Count I alleged that Union had failed to pay the business interruption loss and part of the building and contents losses on the food mart, and was liable for compensatory damages for loss of profits of $30,000 as well as $2,000,000 punitive damages. Count II asserted that Union and Helena colluded to hide the coverage dispute from the Stevensons causing interruption of business in addition to that caused by the fire, and thus they were entitled to $9,000 lost profits, $10,000 business interruption damages, $2,000,000 punitive damages, a 12% penalty, and costs.

Remaining genuine issue of material fact

Rule 56(c) of the Arkansas Rules of Civil Procedure provides that, upon a motion for summary judgment,

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as.to any material fact and that the moving party is entitled to a judgment as a matter of law.

There is no remaining material fact at issue here, for even if the evidence is characterized as the Stevensons would have it, it would not prove a claim of bad faith as that tort is defined in Aetna Casualty & Surety Co. v. Broadway Arms Corporation, 281 Ark. 128, 664 S.W.2d 463 (1983), where we said:

In [Members Mutual Ins. Co. v. Blissett, 254 Ark. 211, 492 S.W.2d 429 (1973)] we settled the issue when we concluded that in order to be successful a claim based on the tort of bad faith must include affirmative misconduct by the insurance company, without a good faith defense, and that the misconduct must be dishonest, malicious, or oppressive in an attempt to avoid its liability under an insurance policy. Such a claim cannot be based upon good faith denial, offers to compromise a claim or for other honest errors of judgment by the insurer. Neither can this type claim be based upon negligence or bad judgment so long as the insurer is acting in good faith. ... [I] n an action of this type for tort, actual malice is that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge. Actual malice may be inferred from conduct and surrounding circumstances. [281 Ark. at 133-134, 492 S.W.2d at 465]

We find no evidence whatever that there was bad faith, as thus defined, in the conduct of Union with respect to the disco claim. The only evidence is that the delay was caused by Union’s dispute with Helena over coverage, and the Stevensons’ dispute with the adjuster over the amount of coverage. There is nothing to show that these were other than real and honest controversies. While Helena may have misrepresented the facts in response to the Stevensons’ inquiries about coverage, the proof does not show the kind of malice we described above.

The Stevensons’ evidence with respect to the food mart negotiations presents a closer case, but it too falls short of a showing of the malice required for a bad faith action. In an adjuster’s report dated June 18,1982, a figure for “exact contents loss” was presented to Union. In that same report appeared the following:

We have not submitted the insureds a Proof of Loss for the supplemental on the involved building for the electrical items and or the remainder of the contents since we had hoped that we could conclude the loss in its entirety by concluding the loss of earnings along with the above mentioned two items. It is our opinion that if we pay the rest of the loss without concluding the loss of earnings with the insureds, we will spend a few more months negotiating a settlement on the loss of earnings.

The Stevensons suggest that this proof could be construed as showing that Union, through its adjuster, proposed putting pressure on them to accept a business interruption offer which Union knew to be lower than that required by the policy. They note that in the Aetna case there was some evidence that an Aetna representative met with the claimant and said that if Aetna paid $75,000 on an inventory loss shown on the claimant’s books at $23,000, the IRS might raise a question about it. We said that the evidence presented a fact question which we would not address because we were remanding the case for a new trial on another issue.

The Stevensons claim there is more evidence of pressure to settle here than in the Aetna case. However, nothing was presented to the court showing that the dispute over the business interruption coverage was not legitimate or that Union was required to pay part of the food mart claim while part of it remained outstanding. In the Aetna case we left open the “pressure to settle” question, given the fact that the case was to be remanded on another issue. That does not amount to a statement, much less a holding, that any showing of pressure to settle creates a fact question sufficient to thwart a summary judgment on a claim of bad faith.

As with any tort requiring a showing of malice or other state of evil mind on the part of the alleged tortfeasor, examples are helpful. An example of the sort of evidence which has been held not to constitute bad faith appears in Cato v. Arkansas Municipal Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985). The trial court found no bad faith where there was a dispute over coverage of a self-inflicted gunshot wound, and the insurer, without notice to its insured, the plaintiff, paid the hospital, which had provided care to the insured, a portion of the claim. We agreed with the trial court, although we reversed on another issue, that refusal to pay a disputed claim does not constitute the tort of bad faith. While the Stevensons contend there was no disputed claim in this case, that ignores evidence in exhibits submitted by them showing their dispute with Union over the degree of coverage for business interruption.

An example of a case in which we agreed there was bad faith in the conduct of an insurer is Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984), where the evidence showed that the insurer altered its records to avoid paying a claim with respect to which there was no legitimate dispute whatever. The evidence in this case does not even come close to that sort of showing, thus we find the summary judgment was proper.

Affirmed.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    R. Scott CAMPBELL v. Clay WHITE, Sheriff of Garland County, Arkansas
    87-278
    746 S.W.2d 42
    Supreme Court of Arkansas
    Opinion delivered March 7, 1988

      Campbell & Campbell, by: R. Scott Campbell, pro se.

      Carl A. Crow, Jr., Prosecuting Attorney, for appellee.
   Tom Glaze, Justice.

Appellant, a practicing attorney, represented clients in their efforts to satisfy twelve separate judgments, and in doing so, appellant had twelve writs of execution issued and placed in the hands of the appellee, the Garland County Sheriff. For various reasons, the sheriff was unable to obtain service on any of these writs, and he noted those reasons on each writ upon making his returns. In each case, the sheriff charged and collected a total fee of $60.00, which represented $50.00 for the service and $10.00 for the return of each writ. Appellant brought this action, alleging the sheriff was not entitled to the $50.00 fee when the sheriff was unable to serve the writs for the following reasons: (1) the appellant failed to furnish a bond, (2) bankruptcy court orders prohibited service, (3) the defendants had moved out of the state, (4) the appellants recalled the writs, and (5) no properties were available upon which to levy. The trial court disagreed with appellant’s assertions and held all the fees collected by the sheriff were authorized by law. On appeal, appellant, citing Ark. Code Ann. § 21-6-307 (1987), contends the sheriff’s collections were not allowed by law in the cases where the sheriff did not complete service of the writs.

Section 21-6-307 sets forth the fee amounts a sheriff may charge for his services, and under provision (a)(2) of that statute, a sheriff can charge $50.00 for “serving a writ of execution.” Provisions (a)(3) and (a)(4) of the same statute respectively provide that the sheriff may charge a 7 % commission “for receiving and paying money on execution or process when lands or goods have been taken into custody, advertised, or sold” and a $10.00 fee for “every return of a writ . . . .” In addition, Ark. Code Ann. § 16-58-114 (1987) provides, in pertinent part:

That no sheriff shall be compelled to execute any writ unless the person in whose favor the writ is issued, his agent or attorney, shall first tender to the officer a sufficient sum of money to pay the cost of the service and mileage from the courthouse to the usual place of abode of the defendant, or other person named in the writ.

When considering these statutory laws that set forth what a sheriff may charge in connection with writs of execution, it is paramount to remember that the right of a sheriff to charge fees is derived from and dependent upon statute. A sheriff is not entitled to any compensation except such as is given to him by law and he can recover no compensation or fees where the law provides none. Miller County v. Magee, 177 Ark. 752, 7 S.W.2d 973 (1928); contra see Garbenis v. Elrod, 118 Ill. App. 3d 11, 454 N.E.2d 719 (1st Dist. 1983); see generally, 70 Am. Jur. 2d Sheriffs, Police, and Constables § 83 (1987).

In view of the applicable and controlling law here, the narrow issue for us to decide is whether § 21-6-307(a)(2), which authorizes $50.00 for “serving a writ of execution,” is intended to allow such a fee when the sheriff is unable to levy upon a defendant’s property or to notify a defendant, by serving him a copy of the writ, of the sheriffs intention to levy on the defendant’s property. We hold the statute, under these circumstances, does not authorize a fee.

A “writ of execution” is defined as a formal process issued by a court generally evidencing the debt of the defendant to the plaintiff and commanding the officer to take the property of the defendant in satisfaction of the debt. Black’s Law Dictionary, 510 (5th ed. 1979). The “service of an execution” has been explained to include every act and proceeding necessary to be taken by the sheriff to make the money and includes the property when necessary. Fallows v. Continental Savings Bank, 235 U.S. 300 (1914); see also 30 Am. Jur. 2d Executions § 207 (1967). Finally, we note that “service of process,” which as defined includes writs, signifies the delivering to or leaving them with the party to whom or with whom they ought to be delivered or left; and, when they are so delivered, they are then said to have been served. Black’s Law Dictionary, 1227 (5th ed. 1979).

In keeping with the common meaning of the terms used in § 21-6-307(a)(2), we conclude the General Assembly intended that, before a sheriff can collect a fee for service of a writ of execution, he must levy upon a defendant’s property or at least serve the defendant with a copy of the writ when the sheriffs attempt to levy upon the defendant’s property proves unsuccessful. If the law were otherwise, an officer could collect such a fee and subsequently make little or no effort to serve a writ of execution. Our view is further supported by the fact that, in those cases when the sheriff is unsuccessful in serving the writ of execution, he, by law, is authorized mileage and cost of service, including the $10.00 fee to which he is entitled upon making the return of the writ. Ark. Code Ann. §§ 16-58-114,21-6-307(a)(4).

Because the appellee in the instant case was unable to serve most of the writs of execution given him by the appellant, we must hold the trial court erred in finding the appellee was entitled to the statutory $50.00 fee. Accordingly, we reverse and remand with directions for the trial court to proceed consistent with this court’s opinion.

Hickman, J., dissents.


author: Per Curiam.

text:
    Judy L. JONES a/k/a Judy Colvin v. STATE of Arkansas
    748 S.W.2d 117
    Supreme Court of Arkansas
    Opinion delivered March 7, 1988

      Donald R. Robert, for appellant.
    No objection.
   Per Curiam.

Defendant, Judy L. Jones, has filed a motion for a belated appeal. Attached to the motion is an affidavit from her attorney which states that he notified defendant of her right to appeal and notified her of the 30 day period for giving a notice of appeal. The affidavit further provides, “[D]ue to no response from the defendant, I did not perfect the appeal. . . .” There is no evidence to indicate that defendant expressed a desire to appeal within the 30 day period. A defendant may waive her right to appeal by failure to inform counsel of her desire to appeal. Henderson v. State, 278 Ark. 107, 643 S.W.2d 541 (1982). Therefore, we deny the motion for a belated appeal.


text:
    Terry L. SHELTON v. James T. SHELTON
    88-14
    745 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered March 7, 1988

      Friday, Eldredge & Clark, by: James C. Baker, Jr., for appellant.

      Biscoe Bingham, for appellee.
   Per Curiam.

Petitioner’s motion to withdraw as counsel is granted subject to the petitioner furnishing the clerk of this court with evidence reflecting counsel has promptly notified the appellant that the new date for filing her brief has been extended to April 18, 1988, and that this case may be dismissed if appellant fails to file a brief on or before April 18th.


author: Jack Holt, Jr.,

text:
    MID-STATE CONSTRUCTION COMPANY, and Fidelity & Casualty Company of New York v. SECOND INJURY FUND, and Ray Davis
    87-221
    746 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988
    [Rehearing denied April 4, 1988.]

      Chester C. Lowe, Jr., for appellant.

      E. Diane Graham, Second Injury Fund, for appellee.

      Gregory Ferguson, for appellee Ray Davis.
   Jack Holt, Jr.,

Chief Justice. In this case we granted a petition to review a decision of the court of appeals announced in an opinion not designated for publication, Mid-State Construction Company v. Second Injury Fund, CA 86-429 (Ark. App. July 15, 1987). The court of appeals affirmed an award made by the Workers’ Compensation Commission against petitioners Mid-State Construction Company (“Mid-State”) and its carrier Fidelity & Casualty Company of New York (“Fidelity”) for a compensable injury suffered by an employee of Mid-State. Mid-State and Fidelity challenge the court of appeals’ definition of the term “impairment” contained in Ark. Code Ann. § 11-9-525 (1987), formerly codified at Ark. Stat. Ann. § 81-1313(i)(1) (Supp. 1985), as involving a “loss of earning capacity,” which to the detriment of Mid-State and Fidelity had precluded liability as to the Second Injury Fund (the “Fund”).

We find that the court of appeals’ definition of the term “impairment” as involving a loss of earning capacity is wrong for in the context of Second Injury Fund cases it seriously undermines the purpose of the Fund to encourage hiring of the handicapped. We therefore reverse and remand for proceedings consistent with this opinion.

The claimant, Ray Davis, sustained a compensable back injury in June 1981 while working for the petitioner employer, Mid-State. In 1953, prior to his employment with Mid-State, Davis had lost his right eye in an accident with a firearm. In 1959, Davis suffered a neck injury which necessitated surgery and resulted in a 10 % anatomical impairment rating to the body as a whole.

Sometime in 1983, Davis sought compensation for permanent total disability based upon his condition resulting from the 1981 back injury, not the neck injury or loss of the eye. Davis testified that he suffered no disability from those earlier conditions either in combination with or independent from his 1981 injury. In proceedings not relevant to disposition of this review, it was determined both by the Commission and by the court of appeals that in light of Davis’ prior conditions, the Second Injury Fund should be made a party.

The Commission subsequently affirmed the following findings of the Administrative Law Judge:

1. Claimant is entitled to an award of permanent partial disability benefits consistent with a rating of 75% to the body as a whole.
2. At the time of his June 4, 1981, compensable injury, claimant was not suffering from a disability in the compensation sense as contemplated by Ark. Stat. Ann. § 81-1313(i)(1) (Supp. 1985).
3. The Second Injury Fund has no liability, and all claims against the Fund are dismissed.

In the opinion now on review, the court of appeals affirmed the Commission’s determination that the Second Injury Fund was not liable premised on the fact that there was no evidence that Davis’ condition prior to the 1981 injury involved a loss of earning capacity by which Davis could be said to have been suffering from either a disability or an impairment as those terms are defined in Osage Oil Co. v. Rogers, 15 Ark. App. 319, 692 S.W.2d 786 (1985), and subsequent decisions of the court of appeals. In this, the court of appeals erred.

Section ll-9-525(a)(l) and (2) provides that the Fund is established and designed to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in the employer’s employment. The employee is to be fully protected in that the Second Injury Fund pays the worker the difference between the employer’s liability and the balance of his disability or impairment which results from all disabilities or impairments combined.

Section 11-9-525(b)(3) and (4) then provides:

If any employee who has a permanent partial disability or impairment, whether from compensable injury or otherwise, receives a subsequent compensable injury resulting in additional permanent partial disability or impairment so that the degree or percentage of disability or impairment caused by the combined disabilities or impairments is greater than that which would have resulted from the last injury, considered alone and of itself, and if the employee is entitled to receive compensation on the basis of combined disabilities or impairments, then the employer at the time of the last injury shall be liable only for the degree or percentage of disability or impairment which would have resulted from the last injury had there been no preexisting disability or impairment.
After the compensation liability of the employer for the last injury, considered alone, which shall be no greater than the actual anatomical impairment resulting from the last injury, has been determined ... the degree or percentage of [the] employee’s disability that is attributable to all injuries or conditions existing at the time the last injury was sustained shall then be determined. . . and the degree or percentage of disability or impairment which existed prior to the last injury plus the disability or impairment resulting from the combined disability shall be determined, and compensation for that balance, if any, shall be paid out of the Second Injury Trust Fund ....

It is clear that liability of the Fund comes into question only after three hurdles have been overcome. First, the employee must have suffered a compensable injury at his present place of employment. Second, prior to that injury the employee must have had a permanent partial disability or impairment. Third, the disability or impairment must have combined with the recent compensable injury to produce the current disability status. We emphasize that in the case at bar we are concerned only with the second hurdle as it relates to the term impairment.

In considering the question of Second Injury Fund liability, we first note that the claimant’s former condition need not have met all elements of compensability under workers’ compensation law. Chicago Mill & Lumber Company v. Greer, 270 Ark. 672, 606 S.W.2d 72 (1980). Also, the former condition and the recent compensable injury cannot both have occurred in the course of the employee’s employment with the same employer. McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986).

The term disability has consistently been defined to involve loss of earning capacity; a definition which the petitioners do not challenge and which in the general context of workers’ compensation law is set by statute and has been affirmed by this court. See Rooney v. Charles, 262 Ark. 695, 560 S.W.2d 797 (1978) (citing Ark. Stat. Ann. § 81-1302(e) (Repl. 1976), now Ark. Code Ann. § 11-9-102(5) (1987)). That definition of disability has carried over into the context of Second Injury Fund cases. See Second Injury Fund v. Fraser-Owens, Inc., 17 Ark. App. 58, 702 S.W.2d 828 (1986) (defining disability as “loss of earning capacity due to a work-related injury”).

The statute governing the Second Injury Fund was amended by Act 290 of 1981, which added the words “or impairment” after the word “disability.” In Osage, supra, the court of appeals construed the legislative intent behind Act 290 as a response to this court’s holding in Greer, supra, and distinguished between disability and impairment in that the latter would involve a “non-work related condition.” However, the court went further and held that the impairment must have involved loss of earning capacity, as in cases involving a prior permanent partial disability. This was wrong. A claimant’s non-work related condition suffered prior to the recent compensable injury need not have involved a loss of earning capacity.

In support of its position in Osage, the court of appeals relied upon its opinions in Harrison Furniture v. Chrobak, 2 Ark. App. 364, 620 S.W.2d 955 (1981), and Craighead Memorial Hospital v. Honeycutt, 5 Ark. App. 90, 633 S.W.2d 53 (1982), which cases had in turn relied upon our decision in Greer and language from 2 Larson, The Law of Workmen’s Compensation, § 59.32(c), at 10-434 — 437 (1987), to the effect that the prior impairment had to have been independently producing some disability prior to the second injury and afterwards. From this, it can be reasoned that if any existing impairments must have been producing some disability, and disability by definition involves loss of earning capacity, all impairments a fortiori must have involved loss of earning capacity. This reasoning, however, does not withstand close scrutiny.

The operative language in Greer, quoted from Larson’s and reproduced by the court of appeals in Osage, reads as follows:

[T]he prior impairment, although not actually a compensable disability, must have been of a physical quality capable of supporting an award if the other elements of compensability were present. [Emphasis ours.]

In other words, the claimant’s prior impairment must have been of a physical quality sufficient in and of itself to support an award of compensation had the elements of compensability existed as to the cause for the impairment. It is the substantial nature of the impairment which is emphasized, and the elements of compensability, none of which may have existed as to the particular claimant, merely assist the fact finder in his determination as to whether the former condition was sufficient in degree to constitute an impairment qualifying the claimant as one of the “handicapped” for whose benefit the statute was enacted. Cf. Harrison Furniture, supra, 2 Ark. App. at 370 (discussing “disability”).

Hence, before the fact finder may consider the final question of whether a claimant’s former condition combined with a recent compensable injury to produce the current disability status, it must be determined whether the claimant’s former condition constituted an “impairment,” and the question which would be posed in each case is as follows:

Is the physical quality of the claimant’s former non-work related condition such that, were all other elements of compensability present, it would be capable of supporting an award?

As such, in determining what is an “impairment,” loss of earning capacity becomes nothing more than one of the elements of compensability which, though possibly lacking in the particular case, constitutes a point of reference under the inquiry posed above.

Any other conclusion flies in the face of Act 290 of 1981. To hold, as did the court of appeals, that there must in fact be evidence that the impairment involved a loss of earning capacity, mandates a prerequisite which (with the narrow exception that the impairment can be non-work related) directly conflicts with the language from Larson and our decision in Greer that the impairment need not have been a “compensable disability.”

To hold otherwise would result in the unfounded and unintended situation that Second Injury Fund liability is denied in a case where a potential employee suffers from an impairment such as loss of one eye which would clearly be capable of supporting an award if the other elements of compensability were present, and the individual is subsequently hired and suffers a compensable injury, such as loss of the other eye, which combines with the former condition to produce the current disability status — complete blindness. Under the definition of impairment as set out in Osage, there is no Fund liability simply because the claimant was unable to demonstrate that the former condition had involved a loss of earning capacity.

This would mean that the present employer and the carrier become potentially liable for the full disability. That result impermissibly distinguishes between two types of handicapped persons, contravenes the statutory scheme which makes employers liable only for the “degree or percentage of disability or impairment which would have resulted from the [recent compensable] injury had there been no preexisting disability or impairment,” and defeats the purpose of the Fund to encourage the hiring of the handicapped.

For similar holdings in other jurisdictions, see Gugelman v. Pressure Treated Timber Co., 102 Idaho 356, 630 P.2d 148 (1981) (citing case law from Alaska, California, Florida, New York, and Tennessee).

In connection with our discussion of the issue at hand, we point out that the court of appeals has defined the term “handicapped” as meaning “a physical disability that limits the capacity to work.” Fraser-Owens, supra. To the extent the language “limits the capacity to work” can be considered as conflicting with our holding in this case, the definition cannot stand.

As to other issues before the court of appeals in the decision now on review, such as that dealing with the presumption of loss of earning capacity which attends scheduled injuries, we find it inappropriate to reach those issues in light of our holding in this case. To the extent that argument dealing with solvency of the Fund has any relevancy in this matter, we recognize that it has previously been emphasized that the Second Injury Fund is a limited and restricted fund and that the statute is to be strictly complied with, lest the Fund be exposed to liability in every workers’ compensation case. See, e.g., Fraser-Owens, supra; Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639, aff'd, 289 Ark. 509 (1986) (Newbern, J., dissenting — explaining Arkansas Workmen’s Compensation Commission v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950)). However, under the facts and issues before us, we find that any concern as to solvency of the Fund as it would be affected by our holding today is entirely premature.

Liability of the Fund was in the case at bar ruled out because there was no evidence that Davis’ former condition involved a loss of earning capacity, and therefore Davis did not meet the definition of disability or impairment. We have discarded the definitional prerequisite that an impairment involve a loss of earning capacity. As such, it remains to determine: (1) whether Davis’ former neck injury and loss of the right eye constituted an “impairment” in that they were of a physical quality which, were the other elements of compensability present, would have been capable of supporting an award; and (2) whether, even if the first requirement is satisfied, Davis’ former condition combined with his 1981 compensable injury to produce a disability greater than that which “would have resulted from the last injury, considered alone and of itself.” Section ll-9-525(b)(3).

We find that this matter, on the record before us and in light of the grounds upon which the court of appeals based its holding in the decision on review, should be remanded to the Commission for appropriate proceedings consistent with this opinion and which resolve the issues as outlined.

Reversed and remanded.

       To construe the clause beginning with “if’ in the language quoted from Larson as meaning “provided that or so long as the other elements of compensability were present” would make the statement self-contradictory and lead to absurd results.


author: Darrell Hickman, Justice.

text:
    Donna REED, d/b/a The Corner Deli, Inc. v. ALCOHOLIC BEVERAGE CONTROL DIVISION
    87-324
    746 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988
    [Rehearing denied April 18, 1988.]

      Donna Reed, pro se.

      Treeca J. Dyer, for the appellee.
   Darrell Hickman, Justice.

The director of the Alcoholic Beverage Control Board suspended the appellant’s liquor license for seven days and placed the permit on probation for 60 days. The board affirmed the director’s decision. On appeal to the circuit court the board’s decision was affirmed, and the appellant appeals to us pro se. She raises 11 arguments on appeal, most of which were not raised below. We will not address those arguments. Arkansas Cemetery Board v. Memorial Properties, Inc., 272 Ark. 172, 616 S.W.2d 713 (1981).

The ABC director put out a pickup order on the appellant’s permit because she had failed to pay a fine previously imposed. The order was served on July 7,1986, and the permit was picked up on that date. The ABC received information that the appellant was selling beer even though her permit had been picked up. An agent from the ABC along with a detective from the Hot Springs Police Department and a confidential informant went to the liquor store to determine if the appellant was violating the law by selling liquor without a posted permit.

According to the police officer, the appellant’s daughter, a 12 year old, sold a six-pack of beer to the informant. The director’s order to suspend the license followed.

The main contention of the appellant is that this action is barred because other court proceedings exonerated the appellant. The appellant had been found not guilty in municipal court of contributing to the delinquency of a minor; the charge of selling liquor without a license was nolle prossed. The appellant cites no authority for her argument. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). However, the double jeopardy clause is limited to criminal actions and does not preclude separate civil proceedings arising out of the same incident. Evidence of acquittal of a criminal offense is not a bar to civil proceedings. See 21 Am. Jur. 2d Criminal Law § 251 (1981).

The appellant contends she was denied her constitutional rights because the board did not allow her to subpoena witnesses. The appellant was not denied the right to present or question any material witnesses. All of the witnesses the appellant asked to have subpoenaed were at the administrative hearing. The board did not permit the appellant to question the board’s attorney. However, the appellant has not indicated what questions she would have asked the attorney, or how her testimony would be relevant. So no prejudice has been demonstrated. Baldwin Company v. Ceco Corporation, 280 Ark. 519, 659 S.W.2d 941 (1983).

The appellant also seems to contend that the wrong standard of review was applied in this case. This seems related to her double jeopardy argument. The board should conduct a de novo hearing, which it did; this decision was then appealed to the circuit court which approved the board’s decision because it was supported by substantial evidence. On appeal to us we also look to see if it is supported by substantial evidence. We do not substitute our judgment for that of the board. Breed v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984).

In this case we find no basis to overturn the board’s decision and therefore affirm the judgment of the circuit court.

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    TONY AND SUSAN ALAMO FOUNDATION, INC. v. Charles D. RAGLAND, Commissioner, State of Arkansas, Department of Finance and Administration
    87-119
    746 S.W.2d 45
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988
    [Rehearing denied April 18, 1988.]

      Gean, Gean, & Gean, by: Lawrence W. Fitting, for appellant.

      Timothy J. Leathers, Wayne Zakrzewski, Kelly S. Jennings, Ann Kell, Joe Morphew, Philip Raia, and Robert Jones, by: John Theis, for appellee.

      Purtle, J., would grant rehearing.

   Darrell Hickman, Justice.

This is a case involving the Arkansas sales tax. The appellant is a California based, nonprofit, charitable institution authorized to do business in Arkansas and, incidental to its charitable purpose, operates several businesses in Arkansas. Six of those businesses are the focus of this lawsuit: a restaurant, a grocery store, two service stations, a clothing store, and an auto repair shop. The legal question is whether meals,* clothing, goods, and services furnished by these retail businesses to members, who are called associates, of the Alamo Foundation are sales under Arkansas law and subject to the sales tax. The chancery court held generally that the transactions were sales. However, the court held that meals prepared by the restaurant and delivered to the foundation associates at Dyer, Arkansas, were taxable at wholesale, rather than retail value. No penalty was assessed for nonpayment.

On appeal Alamo makes four arguments: (1) the transactions are not sales; (2) if they are, they are exempt from the sales tax; (3) the Gross Receipts Act, as applied to these transactions, violates the religion clauses of the federal and state constitutions; and (4) the statutory scheme of the act is discriminatory and therefore unconstitutional.

The state appeals from the chancellor’s decision valuing some of the sales at wholesale rather than retail, and the failure to impose a penalty.

We affirm the decision that the transactions were sales; the Alamo Foundation is unable to claim any exemption, and the constitutional arguments are meritless. We reverse the chancellor’s holding that some of the transactions should be taxed at wholesale value and affirm the chancellor’s finding that no penalty should be assessed.

The facts are essentially undisputed. Alamo operates these businesses for profit and obtained a retail sales tax permit as required by Ark. Code Ann. § 26-52-201 (1987). From these businesses, the Alamo Foundation provides substantial goods and services to its “associates” and their families. “Associates” is a term applied by the Alamo Foundation to members who join or serve the foundation. The associates are also the “employees” of these businesses and other operations of the foundation. See Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985). Associates receive no salaries. Instead, all or substantially all of their material needs are met by these businesses and other endeavors of the foundation. That includes the essentials of life: shelter, food, and clothing. For example, the Alamo Restaurant, during the audit period of September 1, 1977, through August 31,1980, had total sales of approximately $2,300,000. Of that sum, $ 1,400,000 worth of food was sold to the general public; the balance of $956,345 was consumed by Alamo associates and their families. Some of this amount was transferred to foundation headquarters at Dyer for consumption there.

Alamo’s first argument is that the transfer of meals, goods, and services to its associates is not a sale but merely a service to members of a religious organization; that is, if the foundation wants to give its goods and services to its people, it should not be taxed. We look to the definition of a sale in the Arkansas Gross Receipts Act. Ark. Code Ann. § 26-52-103(a)(3)(A) (Supp. 1987) defines a sale as “the transfer of either the title or possession . . . for a valuable consideration of tangible personal property . . . .”

The question to us then is twofold: was there a transfer of title or possession of tangible personal property; if so, was valuable consideration given for the transfer? Undoubtedly, the transactions in question were transfers under this definition. The valuable consideration is the exchange of services and goods for the work of the associates.

We should mention that our decision in Cook v. Southwest Hotels, 213 Ark. 140, 209 S.W.2d 469 (1948), is not controlling. In Southwest Hotels, the hotel occasionally provided meals for some of its employees, and we held that these transfers were not sales. The difference is that the Alamo businesses make substantial and regular transfers to its associates. In fact, the Alamo restaurant prepared food specifically to feed its associates. It was not a matter of extra food or waste, as it is sometimes called in the restaurant business, being consumed by employees.

Were the sales exempt under the act as Alamo contends? One claiming an exemption has the burden of establishing it beyond a reasonable doubt; legislation is strictly construed against such exemptions. See Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1975); Hervey v. Tyson’s Foods, Inc., 252 Ark. 703, 480 S.W.2d 592 (1972). The simple fact that the Alamo Foundation is a religious and charitable organization does not exempt it from paying sales tax. The foundation argues that it should be exempt under Ark. Code Ann. § 26-52-401(1) or (2) (Supp. 1987); however, none of these exemptions can be reasonably applied to Alamo’s case. The act specifically provides that sales by churches and charitable organizations are generally exempt from sales tax except when these organizations are engaged in business for profit. Ark. Code Ann. § 26-52-401(1) or (2). Alamo does not dispute that it operates these businesses for profit.

The religion clauses of the United States and Arkansas Constitutions are the basis of the legal doctrine of separation of church and state, as well as the guarantee of the right to freely exercise one’s religious beliefs without governmental interference. Religious organizations entering the commercial and secular world necessarily do so with the understanding that they no longer enjoy the constitutional protection afforded religious organizations. There are no shields once they cross the line that separates church and state. They are no longer considered a church or religious organization, because they are not acting like one. In an analogous situation, we held that Harding College, a private religious college, was not exempt from real and personal property taxes on some businesses it operated. Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960). In that case we said:

The fact that the rents and revenues of a property owned by a charitable corporation are devoted to the purpose for which the corporation was organized, will not exempt such property from taxation. It is only when the property itself is actually and directly used for charitable purposes that the law exempts it from taxation. . . . “It is well settled that no one can exempt his property from taxation simply by the exclusive use of the income for public charity; for that is a matter which appeals to his own individual spirit of benevolence. It may be given today and withheld tomorrow. But a different rule prevails where the property is directly and exclusively used for that purpose.”

The application of the sales tax to these transactions does not violate the religion clauses of the United States and Arkansas Constitutions. The Alamo Foundation elected to operate retail businesses for profit and, having made that choice, it must abide by the same rules under which all secular businesses operate, including taxation. See United States v. Lee, 455 U.S. 252 (1982).

Alamo finally argues that if it is not exempt from the sales tax, the statutory scheme of the Gross Receipts Act is discriminatory and therefore unconstitutional. This argument is based on the fact that the act specifically exempts several organizations such as the Boy Scouts, Girl Scouts, and 4-H Clubs from the sales tax. See Ark. Code Ann. § 26-52-401(7)-(10) (Supp. 1987). The foundation argues that by exempting some charitable organizations, but not its organization, the act is discriminating in violation of the equal protection and due process clauses of the United States and Arkansas Constitutions.

However, the appellant’s argument overlooks the fact that the Arkansas law exempts these organizations from paying the sales tax on their purchases, not from collecting it on their sales. The appellant’s position in this case concerns sales it makes — not purchases, and so Alamos argument cannot succeed under this statute. (In its reply brief, the appellant acknowledges this discrepancy but does not deal with it.)

We find no basis for the chancellor’s decision that the meals transferred to the Alamo Foundation at Dyer should be taxed at wholesale value rather than retail value, and neither party has been able to produce any authority on the question. In Republic Steel Corp. v. McCastlain, Comm’r, 240 Ark. 979, 403 S.W.2d 90 (1966), a case involving the use tax, we stated that transfers within a company were taxable at the value of the finished product (retail), rather than at the value of the raw materials used to make the finished product (wholesale). Since the legislature has made no provision for different treatment, neither do we. All the transfers should be taxed at retail value. We find no reason to disturb the chancellor’s finding that no penalty should be assessed.

Affirmed on direct appeal. Reversed in part and affirmed in part on cross-appeal.

Purtle, J., dissents in part.

John I. Purtle, Justice,

dissenting. Associates of the Foundation receive no salaries for the services they perform. They devote their full time to the Foundation, which, whether or not we approve of its beliefs and activities, is a religious organization. Most religious organizations would label such services “missionary work.”

The food sales being taxed by the state are based on the food served without charge by the foundation restaurant to the associates and other needy persons. Admittedly, more food was cooked than was expected to be sold to the public. However, no money whatsoever was received by the Foundation for this food.

The food in this case was no more of a sale than the food served daily at the Union Rescue Mission. The transfer of possession of personal property (i.e., food) is not the only necessary condition to find a sale has occurred. If it was, then the meals served at the Rescue Mission would also be subject to the sales tax. In order to tax a “transfer,” valuable consideration must be given in return for the transfer. See Ark. Code Ann. § 26-52-103 (1987). In the present case the associates of the Foundation devoted their time to the Foundation because of their religious beliefs, not because they would receive free meals in return for their services.

In my opinion we are discriminating against the Alamo Foundation by imposing a tax on food “sales” which is not imposed upon other religious and charitable organizations. The tax should not be imposed on these “sales” by the Foundation solely because of disagreement with the manner in which the religious organization carries out its beliefs.


text:
    Willis WILLIAMS v. STATE of Arkansas
    87-187
    746 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988

      Leon N. Jamison, for appellant.

      Steve Clark, Att’y Gen., by: Lynley Arnett, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

The only argument Willis Williams raises is that the trial court should have directed a verdict on his behalf; however, there was substantial evidence that Williams committed aggravated robbery and theft, and his conviction and sentence are affirmed.

Sue Willard, the pawn broker of a shop in Pine Bluff, testified that two men, Kenneth Kendyl and Willis Williams, were in her shop several times on the morning of August 4,1986. First, Kendyl came into the shop and asked for the “car man” who worked next door; Williams was standing at the window but jerked back when she looked and saw him. Soon thereafter, Williams came in and asked for change for a dollar. Ms. Willard testified that this occurred between 11:00 and 11:30 a.m, Around noon Kendyl came in again and asked for the “car man” and then asked to see some jewelry. Ms. Willard handed him a necklace which he dropped; she bent over to pick it up and when she raised up, Kendyl had a .38 pistol in her face.

Another person came in and started pulling jewelry from the case. Ms. Willard was told if she looked up she would be killed; she did not look up.

Ms. Willard could not identify Williams as the other man, but others placed him at the store and connected him to the robbery. Mr. McCloud who also testified at the trial said that he saw Williams and another man leaving the shop around noon. George Parchell testified he saw Williams on the evening of the robbery and that Williams gave him a brown bag containing jewelry, which he asked Parchell to keep. Ricky Lynn Ray shared a cell with Williams and testified Williams told him that he, Williams, and his cousin Kendyl planned the robbery the night before.

At trial Williams denied that he robbed the store. He said that Kendyl robbed the store and then hid the jewelry in Williams’ house.

On appeal we look to see if there is substantial evidence to support the verdict. Williams v. State, 281 Ark. 387, 663 S.W.2d 928 (1984). It was for the jury to decide who was telling the truth and what weight to give to the testimony of the witnesses. We find that there was substantial evidence to support the verdict.

Affirmed.


author: John I. Purtle, Justice.

text:
    Linda Carolina BRIMER v. STATE of Arkansas
    CR 88-9
    746 S.W.2d 370
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988

      Donald R. Huffman, Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: David B. Eberhard, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

This case was certified to us by the Court of Appeals pursuant to Ark. Sup. Ct. Rule 29(l)(c) because it involves the interpretation of Ark. Code Ann. §§ 5-4-303 and 16-90-303 (1987). On November 4,1986, the appellant entered a guilty plea to class C felony theft of property as defined in Ark. Code Ann. § 5-36-103 (1987). The trial court held a “sentencing and restitution hearing” on January 12, 1987, at which time the prosecutor recommended restitution in the amount of $138,384.65. The court found that restitution in the amount of $135,000.00 was appropriate. The court then sentenced her to six (6) years in prison, with two (2) years suspended on condition that she pay the sum of $135,000 at the rate of $200.00 per month, beginning sixty (60) days after her release from prison, and continuing for twelve years, at which time a civil judgment would be entered for the outstanding balance. There were other conditions attached to the suspended sentence.

For reversal the appellant argues that the trial court erred in: (1) ordering her to make restitution payments for a period in excess of the maximum time authorized by law; and (2) precluding the appellant from offering testimony to prove the amount for which she should be required to make restitution. We find the trial court committed reversible error in both respects and remand the case to the trial court.

The appellant was employed as a bookkeeper by Mary Morgan and her husband, Doctor Benjamin Spock, from 1982 until 1984. While so employed she misappropriated large sums of money. The parties never agreed as to the exact amount of money which the appellant misappropriated. At the hearing the prosecuting attorney recommended restitution in the amount of $138,384.65. This amount included about $98,000.00 which the victims were fairly certain had been misappropriated. It also included $13,458 for her former employers’ accountant’s fees, travel expenses and attorney’s fees.

During the restitution hearing the trial court refused to allow appellant’s attorney to question one of the victims concerning the possibility of her own responsibility for a portion of the unaccounted funds. The appellant attempted to explain that she was not responsible for all of the funds which were alleged to be missing. The trial court ruled that any attempt by the appellant to show any amount of missing funds was due to the fault of someone other than herself was an attempt to try the issue of guilt, which had already been determined. She had pled guilty to theft of funds in an amount between $200.00 and $2,500.00. The appellant attempted to convince the court that proving she was not responsible for any amount over $2,500.00 should not be construed as an attempt to prove her innocence. However, the court rejected this contention and offered to let her withdraw her plea. Eventually she was allowed to give her own testimony concerning most of the funds. However, she was not permitted to cross-examine the victim about the missing funds which appellant sought to establish were in fact taken by this victim.

There are several different statutes involved in deciding this case. The first pertinent sections are Ark. Code Ann. § 5-36-103(a) (1987), which defines theft of property, and § 5-36-103(b)(2)(A), which classifies theft of property as a class C felony if:

The value of the property is less than two thousand five hundred dollars ($2,500.00) but more than two hundred dollars ($200.00) ....

Ark. Code Ann. § 5-4-401 (1987) classifies and governs the terms of sentences. Section 401(a)(4) states:

For a Class C felony, the sentence shall not be less than three (3) years nor more than ten (10) years ....

Ark. Code Ann. § 5-4-104(a), (d), and (e) (1987) govern the disposition and conditions of sentences as follows:

(a) No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.
(d) A defendant convicted of an offense other than a class Y felony, capital murder, treason, or murder in the second degree may be sentenced to any one or more of the following, except as precluded by subsection (e) of this section:
(1) Imprisonment as authorized by §§ 5-4-401 — 5-4-404; or
(2) Probation as authorized by §§ 5-4-301 — 5-4-311; or
(3) Pay a fine as authorized by §§ 5-4-201 — 5-4-203; or
(4) Make restitution; or
(5) Imprisonment and to pay a fine.
(e) (1) If a defendant pleads or is found guilty of an offense other than capital murder, treason, a Class Y felony, or murder in the second degree, the court may suspend imposition of sentence or place the defendant on probation, in accordance with §§ 5-4-301 — 5-4-311.
(2) If the offense is punishable by fine and imprisonment, the court may sentence the defendant to pay a fine and suspend imposition of the sentence as to imprisonment or place him on probation.
(3) The court may sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment, but the court shall not sentence a defendant to imprisonment and place him on probation, except as authorized by § 5-4-304. [Arkansas Criminal Code of 1976, as amended in 1981 and 1983]

The exception under (e)(3) refers to Ark. Code Ann. § 5-4-304 (1987) which qualifies the type of confinement which can be given as a condition of suspension or probation as follows:

(a) If the court suspends the imposition of sentence on a defendant or places him on probation, it may require, as an additional condition of its order, that the defendant serve a period of confinement in the county jail, city jail, or other authorized local detention, correctional, or rehabilitating facility, at whatever time or consecutive or nonconsecutive intervals within the period of suspension or probation as the court shall direct.
(c) The period actually spent in confinement pursuant to this section shall not exceed ninety (90) days in case of a felony or thirty (30) days in the case of a misdemeanor.

Ark. Code Ann. § 5-4-303 (1987) speaks to conditions of suspension or probation. In part this statute states:

(a) If the court suspends imposition of sentence on a defendant or places him on probation, it shall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life.
(c) If the court suspends imposition of sentence on a defendant or places him on probation, it may, as a condition of its order, require that the defendant:
(8) Make restitution or reparation to aggrieved parties, in an amount he can afford to pay, for the actual loss or damage caused by his offense ....
(f) If the court suspends the imposition of sentence on a defendant or places him on probation conditioned upon his making restitution or reparation under section (c)(8) of this section this court shall, by concurrence of the victim, defendant, and the prosecuting authority, determine the amount to be paid as restitution. The court shall further, after considering the assets, financial condition, and occupation of defendant, determine whether restitution shall be total or partial, [and] the amounts to be paid if by periodic payments . . .. If the court has suspended the imposition of the sentence or placed the defendant on probation conditioned upon him making restitution or reparation and the defendant has not satisfactorily made all his payments when the probation period has ended the court shall have the authority to continue to assert jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant’s suspended sentence.

There is another law which addresses the limitations on suspension of imposition of sentence and probation. It is Ark. Code. Ann. § 5-4-306(a) (1987) which states:

If the court suspends the imposition of sentence on a defendant or places him on probation, the period of suspension or probation shall be for a definite period of time not to exceed the maximum jail or prison sentence allowable for the offense charged. The court may discharge the defendant at any time.

We cannot ascertain from the record which statutes or sections thereof the court was proceeding under in pronouncing this sentence and the amount of restitution. The court was more likely operating under Ark. Code Ann. § 16-90-303 (1987) (Act 704 of 1981) when the order was entered. This section of the code states:

(a) If a defendant pleads guilty or is found guilty of a criminal offense, the trial court of criminal jurisdiction shall, in addition to imposition of sentence, enter a monetary judgment or reparation from the offender to the victim that will totally or partially compensate the victim for his personal injury or loss of or damage to his property caused by the criminal act of the offender.
(b) The court shall specify the total amount to be compensated, the rate of compensation, if periodic payments are provided, and to whom it is to be paid.....

However, the court’s authority to set restitution is somewhat restricted by Ark. Code Ann. § 16-90-305 (1987) where it provides:

(a) To enable the court or jury, as the case may be, to properly fix the amount of restitution or reparation, the prosecuting attorney shall, after appropriate investigation, recommend an amount that would make the victim whole with respect to the financial injury suffered, including value of property, loss or injury, cost of medical care, burial expense, if applicable, and all other measurable monetary damages directly related to the offense.
(b) If the defendant disagrees with the recommendation of the prosecuting attorney he shall be entitled to introduce evidence in mitigation of the amount recommended.

Act 704 goes on to provide that the judgment granted in such cases shall become a judgment against the offender and have the same force and effect as any other civil judgment. Civil judgments are good for ten years and are renewable for successive periods of ten years, indefinitely. Such judgments are subject to levy, execution and garnishment at all times. Once the civil judgment for restitution is validly entered the victim has it within his power to pursue the collection of the judgment.

Still another statute may be considered in resentencing the defendant. Ark. Code Ann. § 16-93-401 (1987) provides that when justice and the public interest will be served the circuit court “may suspend the imposition of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.” However, the same section provides:

(d) The period of probation, together with any extension thereof, shall not exceed five (5) years.

Theft of property of a value between $200 and $2,500 is a class C felony and the range of punishment is three to ten years. There are several possible combinations of sentencing. These include suspension, probation, restitution, partial suspension, and partial probation, as well as the provisions of Act 378 of 1975 as amended (the Alternative Service Act). Ark. Code Ann. § 16-93-507 (1987). However, if the court suspends the imposition of sentence or places the person on probation, it must be for a specific period of time, not to exceed the maximum jail or prison time allowable for the offense charged. Ark. Code Ann. § 5-4-306(a) (1987). Clearly the sentence in this case extended beyond the ten year maximum sentence authorized as punishment for a class C felony. Therefore, the sentence was not one authorized by law and the case must be remanded to the trial court.

If the court suspends the imposition of sentence or places her on probation conditioned upon making restitution as provided by Ark. Code Ann. § 5-4-303, payment must be in an amount she can afford to pay and the victim, defendant and prosecuting attorney must agree on the amount. This section of the code appears to be aimed at allowing an accused to remain out of prison so long as satisfactory payments of restitution are being made. Immediate imprisonment would thwart such intent. Section 5-4-303 is available to the trial courts if deemed just and proper.

If the trial court sentences the defendant pursuant to Ark. Code Ann. § 16-90-303, the court shall, in addition to imposition of sentence, enter “a monetary judgment or reparation from the offender to the victim” that will totally or partially compensate the victim for his loss. In such case the prosecuting attorney, in order to enable the court or jury to fix the amount of restitution, “shall recommend an amount that would make the victim whole.” Ark. Code Ann. § 16-90-305(a). However, if the defendant disagrees with this recommendation, she may “introduce evidence in mitigation of the amount recommended.” Ark. Code Ann. § 16-90-305(b).

After release from prison an inmate is on probation under supervision of the Department of Correction. The distinction between suspension and probation is whether supervision is exercised. See commentary to § 5-4-303. That is the reason the statutes prohibit a court from sentencing a defendant to a term in prison and following it by a period of probation. Ark. Code Ann. § 5-4-104(e)(3) appears to allow a period of suspension following a term in prison.

Obviously the Arkansas criminal statutes relating to sentencing are complex, confusing and even contradictory. The purpose of the 1976 Criminal Code was to eliminate archaic statutes, replace the profusion of overlapping statutes, and develop an evenhanded method of grading offenses. DiPippa, “Suspending Imposition and Execution of Criminal Sentences: A study of Judicial and Legislative Confusion,” UALR Law Journal, Vol. 10, number 2, p. 367 (1987-88). One of the provisions of the 1976 Criminal Code (now codified as Ark. Code Ann. § 5-4-104) states: “No defendant convicted of an offense shall be sentenced otherwise than in accordance with this chapter.” It was a good start and easily understood. However, in due course, the General Assembly commenced patchwork modification of the code until it has reached the present state.

In his well reasoned article Professor DiPippa stated:

The significant feature of the code’s sentencing provisions is the effect of a judgment of conviction. Entry of a judgment of conviction forecloses some of the sentencing court’s options. If a judgment of conviction is entered then the court may impose a fine or imprisonment or both. If a court does not enter a judgment of conviction then it may suspend imposition of a sentence or place the defendant on probation but not both. The rationale behind this scheme is to give the court a flexibility to deal with offenders in the most appropriate manner. An offender who can be fully rehabilitated by the threat of punishment may receive a suspended sentence and, upon successful completion of the period of suspension, not have a conviction on his record.

Confusion in sentencing has existed at least since our decision in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). Although the code did not contain a section which expressly repealed the superseded statutes, the code purported to repeal “all laws and parts of laws in conflict with this Code.” Some trial courts added to the confusion by continuing to follow the provisions under prior law. Moreover, the legislature has attempted to amend the code several times and has added to it on other occasions. We tried to explain the law in Culpepper and in McGee v. State, 271 Ark. 611, 609 S. W.2d 73 (1980). We did not clarify the law because it could not be done. However, many cases and statutes later, the sentencing provisions in Arkansas are even more complex and overlapping and are in great need of simplification and clarification.

The judgment is reversed and remanded to the trial court with directions to resentence the defendant in accord with the various procedures available.

Glaze, J., concurs.

Hays, J., not participating.


text:
    Joe David THOMAS v. STATE of Arkansas
    CR 87-188
    746 S.W.2d 49
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988

      Ford, Blair & Crabtree, by: Terry Crabtree, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

On June 26,1987, a jury returned verdicts finding the appellant guilty of two counts of arson, four counts of burglary, and one count of theft of property. His punishment was assessed at twenty (20) years each on the arson counts and ten (10) years each on the other five convictions, the sentences to be served consecutively. His sole argument on appeal is that the evidence was insufficient to support the arson convictions. We agree, and reverse and dismiss the arson convictions. The judgment ás to the other five convictions is affirmed.

The Siloam Springs Golf Course Clubhouse and the dwelling of Diana Lovett were burglarized in 1986, and shortly thereafter both buildings burned. The appellant was charged by information with the burglary and arson of both structures, two other counts of burglary, and one count of theft of property. After his arrest, the appellant made several incriminating statements. In this confession, the appellant indicated it was actually an accomplice who set the fires. The accomplice entered a guilty plea to charges of burning these properties.

The state did not call any witnesses, expert or otherwise, to establish that the fires were purposefully started. The owners of the properties testified at the trial, but they did not have any knowledge about the origin of the fires. The state clearly established that the appellant was involved in the two burglaries. It is also undisputed that both structures were destroyed by fire. However, there was no evidence introduced by the state other than the confession to indicate that the fire was of intentional origin.

We note initially that the appellant was charged in one of the arson counts with destroying or damaging a “vital public facility.” Ark. Code Ann. § 5-38-301 (a)(4) (1987). This facility was the Siloam Springs Golf Course Clubhouse. Ark. Code Ann. § 5-38-101(4) (1987) states: “‘Vital public-facility’ means a facility maintained for use for public communications, transportation, supply of water, gas, or power; law enforcement; fire protection; civil or national defense; or other public service.” A clubhouse for a golf course does not meet any of the criteria set out above. Obviously, however, it is an “occupiable structure.” See Ark. Code Ann. § 5-38-101(1) (1987).

The Attorney General concedes that the evidence is insufficient to support the arson convictions.

A confession of a defendant must be accompanied by other proof that the offense was committed. McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984). Ark. Code Ann. § 16-89-111(d) (1987) states: “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.”

This statute was discussed in the context of arson in the case of Johnson v. State, 198 Ark. 871, 131 S.W.2d 934 (1939). Speaking for the court in Johnson, Chief Justice Griffin Smith stated the question: “Was there ‘other proof that the offense was committed? We do not think so. It is possible — perhaps probable — that the defendant’s confession was true.” He emphasized, however, that it is more important that the law’s symmetry be preserved than that a criminal be punished in a particular case. The opinion further stated:

There is no presumption that an unexplained fire is of incendiary origin. On the contrary, the presumption is that the fire was caused by an accident, or, at least, that it was not of criminal design. In a prosecution for arson, as in other criminal cases, it is incumbent on the state to prove the corpus delicti, and it is now recognized as the universal rule in the law of arson that in order to establish the corpus delicti it is not only necessary that the state prove the burning of the building [or property] in question, but the evidence must also disclose that it was burned by the wilful act of some person criminally responsible for his acts, and not by natural or accidental causes.
The “other evidence” . . . must be of that substantial character which, independent of a confession,. . . would suffice to overcome the legal presumption that the casualty was an accident, or that it resulted from natural events.

The presumption against arson and the statute requiring “other proof that the offense was committed” were recently addressed in Boden v. State, 270 Ark. 614, 605 S.W.2d 429 (1980). Boden cited Johnson with approval and reaffirmed the common law presumption against arson in the instance of an unexplained fire, and the requirement that evidence must be of a “substantial character” to rebut this presumption.

Stating the case most favorably to the state, as we are bound to do on appeal, the evidence demonstrates that the appellant confessed to the burglary and arson of the two buildings and that the buildings were destroyed by fire. However, there was no showing of the origin of the fires nor any evidence that they were intentionally set. Therefore, we must agree with the appellant that there was insufficient evidence to support the convictions on the two counts of arson.

The convictions for arson are reversed and dismissed. The judgments concerning the other convictions are affirmed.

Hickman and Hays, JJ., concur.


author: Robert H. Dudley, Justice.

text:
    REFCO, INC. v. HEINOLD COMMODITIES, INC.; John Collis and Wanda Collis, et al.
    87-330
    746 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988

      Friday, Eldredge & Clark, by: Kevin A. Crass, for appellant.

      Stanley, Harrington & Watson, P.A., by: Roy E. Stanley, for appellees.
   Robert H. Dudley, Justice.

The creditor-plaintiff filed a foreclosure action against the debtors and named as additional defendants some other creditors who might have held inferior liens. One of the other creditors, Refco, appeals the trial court ruling that its judgment lien had expired. We affirm.

On February 27,1984, appellant Refco obtained a judgment in a separate action in federal district court against one of the debtor-defendants who also was the titleholder of the Benton County real estate being foreclosed in this action. On November 28, 1984, the judgment was recorded in the Benton County judgment book. Ark. Stat. Ann. § 29-130 (Repl. 1979) provides that a judgment granted by a federal district court becomes a lien on real estate when a certified copy of the judgment is recorded in the permanent judgment records of the county where the judgment debtor owns real estate. Although amended in 1985, at all times material to this action Ark. Stat. Ann. § 29-131 (Repl. 1979) provided that a judgment lien would “continue in force for three [3] years from the date of the judgment and may be revived.” Ark. Stat. Ann. § 29-602 (Repl. 1979) provides that a judgment lien may be revived by suing out a scire facias.

Refco did not sue out a scire facias within three years from the date of the judgment, and the trial court held that the judgment lien expired February 27,1987, which was three years from the date of the judgment. Refco contends that the trial court’s ruling was erroneous, arguing that the plaintiff filed her complaint in foreclosure on December 31,1986, which was within the three years from the date of its judgment, and that this filing of the complaint tolled the running of the limitation.

We reject appellant’s argument. The time limit provided in § 29-131 is not a statute of limitation; it is a period of duration. The expiration of a statute of limitation extinguishes a right to enforce a remedy, but it does not extinguish the substantive right itself. Boatman v. Dawkins, 294 Ark. 421, 424; 743 S.W.2d 800, 802 (1988). The expiration of a statute of duration, however, extinguishes the substantive right itself. Under this statute of duration, § 29-131, a lien expired upon the passage of three years, unless it was revived under § 29-602. In the present case, the appellant did not comply with § 29-602, and the mere fact that it was made a party to a lawsuit during the existence of the lien did not in itself prevent the subsequent expiration of the lien.

While we have never before addressed the issue, a number of other courts have. For example, in King v. Hayes, 223 Mo. App. 139, 9 S.W.2d 538 (1928), the plaintiff obtained a judgment lien on April 12, 1921. Under Missouri law, the lien would have expired on April 19, 1924, unless it was revived in some manner. The plaintiff filed suit to foreclose on February 2, 1924 (i.e., within the three year time limit). The case was set for trial on April 8,1924, but was continued at the defendant’s request until April 25,1924. On April 25,1924, the defendants filed a motion for judgment on the pleadings, arguing that the plaintiffs lien had expired six days earlier. The lower court agreed, as did the appellate court. The appellate court held:

It is true, as pointed out by plaintiff, that no execution could be issued on the judgment pleaded in plaintiffs petition after the death of D.T. Tucker, the judgment debtor. Alnutt v. Leper, 48 Mo. 319; Stoutimore v. Clark, 70 Mo. 471. The judgment, however, was a preferred claim against Tucker’s estate, and, in addition to that remedy, plaintiff had the right to enforce the lien of the judgment against real estate by a bill in equity, which course plaintiff followed when this suit was instituted. Griswold v. Johnson, 22 Mo. App. 466.
Such a suit, however, is not recognized by our statutes, and we are unable to find any authority for holding thát the bringing of a suit of this character would take the place of a scire facias and thus keep the lien of the judgment in force. It is clear enough that the very foundation of plaintiíf s suit was the uninterrupted continuance of his judgment lien. He knew, or should have known, that under the statute, heretofore referred to, his judgment lien would expire on the 19th day of April, 1924. The statute pointed the way, and the only way, as we understand its provisions, by which the lien of the judgment could be kept continuously in force. Bick v. Vaughn, 140 Mo. App. 595, 120 S.W. 618.
The issuance of a writ of scire facias, directed to the heirs of D.T. Tucker, at any time before the 19th day of April, 1924, would have kept the lien of plaintiffs judgment alive. It was his duty, we think, to have protected his bill to enforce the judgment lien against the real estate in question by suing out a writ of scire facias before his lien expired, as provided by law.

Id. at 141-42, 9 S.W.2d at 540; see also Rich v. Cooper, 136 Neb. 463, 286 N.W. 383 (1939); Ruth v. Wells, 13 S.D. 482, 83 N.W. 568 (1900); 49 C.J.S. Judgments §§ 492-495, 510 (1947). We find that the Arkansas statutes should be interpreted similarly.

Affirmed.


text:
    SEVENPROP ASSOCIATES, A New York Limited Partnership v. Christine HARRISON
    87-346
    746 S.W.2d 51
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988

      Moore, Moore-Hart & Barton, by: Janet Moore-Hart, for appellant.

      Youngdahl & Youngdahl, P.A., by: Thomas H. McGowan, for appellee.
   Robert H. Dudley, Justice.

This appeal is dismissed because there is not yet a final judgment.

The plaintiff, Christine Harrison, filed a tort suit and asked for $150,000.00 in compensatory damages and $500,000.00 in punitive damages. Service was had on the defendant, Sevenprop Associates, a New York limited partnership, on January 20, 1987, and the defendant did not answer. A motion for a default judgment was filed and service on that motion was perfected. Shortly thereafter, on April 21,1987, the trial court, without hearing any proof on damages, entered a default judgment on liability as well as for all damages asked. On July 2, 1987, the defendant filed a motion to set aside the entire default judgment. The trial court recognized that the amount of damages had not been admitted by the failure to answer, see ARCP Rule 8(d), and vacated that part of the default judgment which had awarded damages, but left standing the default as to liability. The order partially vacating the judgment was entered on July 20, 1987, which was within 90 days of the original judgment. See ARCP Rule 60(b). The defendant now seeks to appeal the trial court’s refusal to set aside the default as to liability. We dismiss the appeal because the refusal to set aside a default judgment as to liability is not a final judgment as required for appeal. See Ark. R. App. P. 2. The issue of damages remains to be tried before there can be a final order.

We have frequently held that we will not decide the merits of an appeal when the order appealed from is not a final order. Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984); Corning Bank v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737 (1984); Heffner v. Harrod, 278 Ark. 188, 644 S.W.2d 579 (1983); McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). In all of these cases we have stated that in order for a judgment to be appealable, it must dismiss the parties or conclude their rights to the subject matter in controversy. Here, the issue of damages remains to be decided.

The appellee did not raise this issue of appealability, but the issue is a jurisdictional one which we raise on our own in order to avoid piecemeal appeals. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982).

Appeal dismissed.


author: Steele Hays, Justice.

text:
    David Allen LAWSON v. STATE of Arkansas
    CR 87-197
    746 S.W.2d 544
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988

      Sherman & James, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

The question is whether our DWI enhancement statute can be coupled with our general habitual offender statute for sentencing on the same offense.

Appellant, David Lawson was charged with driving while intoxicated, and on March 18,1987 was tried by a jury and found guilty. At the time of trial Lawson had at least three prior DWI offenses within three years of the DWI for which he was charged, and at least four prior felony convictions not related to DWI. The exact numbers are not in issue.

The court allowed the jury to set Lawson’s sentence by applying both the DWI sentencing enhancement scheme for a fourth offense, Ark. Code Ann. § 5-65-111 (1987) [Ark. Stat. Ann. § 75-2504 (Supp. 1985)] and our general habitual offender enhancement statute, Ark. Code Ann. § 5-4-501 [Ark. Stat. Ann. §41-1001 (Supp. 1985)], resulting in a range from eight to twelve years. The jury sentenced Lawson to the maximum.

On appeal Lawson raises the single argument that it was error to sentence him by applying both the DWI enhancement statute and the general habitual offender enhancement statute. We agree.

Our habitual offender statute, Ark. Code Ann. § 5-4-501 (1987) provides:

(b) A defendant who is convicted of a felony committed after June 30,1983, and who has previously been convicted of four (4) or more felonies, may be sentenced to an extended term of imprisonment as follows:
* * *
(b) For a conviction of an unclassified felony punishable by less than life imprisonment, not less than seven (7) years more than the minimum sentence for the unclassified offense nor more than twice the maximum sentence for the unclassified offense.

Our DWI enhancement statute, Ark. Code Ann. § 5-65-111 (1987) provides:

(b) Any person who pleads guilty, nolo contendere, or is found guilty of violating § 5-65-103 shall be imprisoned:
* * *
(3) For at least one (1) year but not more than six (6) years for the fourth or subsequent offense occurring within three (3) years of the first offense and shall be guilty of a felony.

The first, second and third offenses under the DWI statutory scheme are only misdemeanors, but as can be seen, the fourth offense becomes a felony, and under the general habitual offender statute would be an unclassified felony.

Under the DWI enhancement provision the sentence range for a fourth or subsequent offense is one to six years. But when the DWI provision is joined with the habitual offender provision the range increases to eight to twelve years, as occurred in this case. Thus the issue is whether it is proper for a specific subsequent offense penalty enhancement statute to be stacked upon a general habitual criminal statute in sentencing for a single offense? And more narrowly, is it permissible to stack two such statutes when the conduct currently being punished — the offense which triggers application of the habitual criminal statute — is a misdemeanor that has been enhanced to a felony statute only by virtue of its repetition?

We have not yet addressed this issue directly. We dealt with another aspect of the problem in Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985), but that case is distinguishable. In Peters, the defendant had three prior DWI’s, misdemeanors, and was tried for his fourth. The trial court used the procedure for determining prior convictions which is provided for habitual offenders, Ark. Code Ann. § 5-4-502 (1987) [Ark. Stat. Ann. § 41-1005 (Supp. 1985)], i.e., after the jury found the defendant guilty, the judge heard evidence in chambers to determine the number of prior convictions and then instructed the jury what the range of sentencing should be. We said the habitual offender statute was inapplicable because that statute provides extended terms for those who have committed more than one but less than four felonies and in that case, the defendant had three previous convictions, all misdemeanors. We also held that the existence of three prior convictions constitutes an element of DWI fourth offense and therefore, that issue must be heard and decided by the jury. Here, unlike Peters, we are not dealing with the habitual offender statute on the basis of prior DWI misdemeanors, but with four felonies unrelated to DWI charges. Moreover, in Peters the application of both the habitual offender statute and the DWI enhancement statute was not the issue.

In surveying other jurisdictions, we find the weight of authority to be against the stacking of enhancement statutes. Goodloe v. Parratt, 605 F.2d 1041 (8th Cir. 1979); State v. Chapman, 205 Neb. 368, 287 N.W.2d 697 (1980); State of New Mexico v. Keith, 102 N.M. 462, 697 P.2d 145 (Ct. App. 1985). Of those states that have considered the question, a clear majority have not allowed stacking of enhancement statutes in this case. State v. Chapman, supra; State v. Keith, supra; People v. Vernon, 83 Misc. 2d 1025, 373 N.Y.S.2d 314 (N.Y. Sup. Ct. 1975); Ex Parte Boatwright, 216 Cal. 677, 15 P.2d 755 (1932); State v. Smith, 12 Ariz. 272, 569 P.2d 838 (Ct. App. 1970); State v. Sander, 337 So.2d 1131 (La. 1976). Only two states appear to have allowed it: Commonwealth v. Grimes, 698 S.W.2d 836 (Ky. 1985); Woods v. State, 471 N.E.2d 691 (Ind. 1984).

While not addressing the issue directly, several states have held that penalty enhancement provisions set forth for subsequent offenses of specific crimes must be used when applicable instead of sentencing under a habitual criminal act, implying that both statutes may not be used for double penalty enhancement in sentencing for one offense. Lloyd v. State, 139 Ga. App. 625, 229 S.E.2d 106 (1976); State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229 (1976); Willeford v. State, 454 S.W.2d 745 (Tex. Cr. App. 1979); Broome v. State, 440 P.2d 761 (Okla. Crim. App. 1968).

All the state courts that have dealt with the issue have done so through statutory construction. When stacking is disallowed courts have employed various construction rules: statutes authorizing a more severe punishment are deemed highly penal and therefore must be strictly construed, State of New Mexico v. Keith, supra; ambiguities in the construction of criminal statutes are resolved in favor of the rule of lenity, Busic v. U.S., 446 U.S. 408 (1980); State of New Mexico v. Keith, supra-, a different meaning of the term “felony” is found in some specific enhancement statute from the same term as used in a general habitual statute, State v. Chapman, supra; Goodloe, supra; a more specific statute will be given precedence over a more general one, Goodloe, supra; Busic, supra.

In sum, other courts have generally concluded on the basis of legislative intent that stacking a specific and general statute is impermissible. Applying the same rules of construction, we believe our own legislature did not intend the two statutes to be used together.

We have long recognized the familiar principle that where a special act applies to a particular case, it excludes the operation of a general act upon the same subject. Saline County v. Kinkead, 84 Ark. 329, 106 S.W. 581 (1907); Abbott v. Butler, 211 Ark. 681, 201 S.W.2d 1001 (1947). We have also always recognized the principle that penal laws should be strictly construed, State v. Simmons, 117 Ark. 159, 174 S.W. 159 (1915),Burrellv.State, 203 Ark. 1124, 160 S.W.2d 218 (1942); that all doubts in construing a criminal statute must be resolved in favor of the defendant, Stuart v. State, 222 Ark. 102, 257 S.W.2d 372 (1953); Knapp v. State, 283 Ark. 346, 676. S.W.2d 729 (1984); and that courts are not permitted to enlarge the punishment provided by the legislature either directly or by implication. Savage v. Hawkins, 239 Ark. 658, 391 S.W.2d 18 (1965); State v. Simmons, supra.

By applying these rules of construction we are satisfied the legislature did not intend this specific criminal enhancement statute should be coupled with our general criminal enhancement statute for the resulting purpose of creating a greater sentence than if either statute had been applied singly. This is in accord with our decision in Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1985), where we were faced with an analogous situation involving the same Omnibus DWI Act at issue in the case before us. We applied the principle of the specific act overriding a general act on the same subject and held that the specific mandatory sentencing requirement under that act, excluded the discretionary probation provided for in our general criminal statutes.

We make one further point, noting first that the felony in this case which would have triggered the general habitual offender statute was otherwise only a misdemeanor and became a felony simply by virtue of its repetition. Using a felony of this nature for habitual offender purposes is specifically condemned by the ABA:

This edition also agrees with the prior edition that misdemeanors no matter how frequent, should not be treated as a substitute for one of the [predicate] felony convictions [used for habitual offender statutes]. Experience with habitual offender statutes indicates, above all else, the need for a “bright-line” standard by which to distinguish the dangerous offender from the mere nuisance to society. American Bar Association, Standards for Criminal Justice, Second Edition, Vol. III. (1980) § 18-4.4, p. 290.

For the reasons stated the judgment is reversed and the case is remanded with directions to reduce the sentence to six years, the maximum under the Omnibus DWI Act.

REVERSED and REMANDED.