Nathan Claiborne Paytes v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

NATHAN CLAIBORNE PAYTES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-22

AUGUST 29, 2001

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

[NO. CR 2000-37]

HONORABLE DAVID N. LASER, CIRCUIT JUDGE,

AFFIRMED

The Mississippi County Circuit Court convicted the appellant, Nathan Paytes, of driving while intoxicated, fourth offense, and sentenced him to one year of community punishment to be followed by a three-year suspended sentence and a $900 fine. On appeal, appellant claims that Act 1077 of 1999, which was used to enhance his punishment, violates the ex post facto and due-process clauses of the United States Constitution. We affirm.

The parties stipulated that appellant was weaving across the highway the night of January 19, 2000. State Trooper Mark Brice stopped appellant's car, administered field sobriety tests, which appellant failed, and then transported him to the Blytheville Police Station. At the police station, appellant's blood alcohol content registered .21% on a breath analyzer test. At trial, the State introduced a docket sheet which showed that appellant was arrested for DWI on August 9, 1996, and convicted in the Blytheville Municipal Court on

August 14, 1996. The State next admitted into evidence a docket sheet which reflected that appellant had been arrested for DWI, second offense, on January 27, 1998, and convicted on February 13, 1998. Finally, the State introduced a third docket sheet which showed that appellant had been convicted for DWI in Gosnell Municipal Court on June 9, 1998.

Pursuant to Act 1077 of 1999, which is codified at Ark. Code Ann. section 5-65-111(b)(2) (Supp.1999), the circuit court considered appellant's 1996 DWI arrest and conviction in finding him guilty of DWI, fourth offense. Act 1077 provides that a person convicted of DWI shall be imprisoned "[f]or no fewer than ninety (90) days and no more than (1) year for the third offense occurring within five (5) years of the first offense." Prior to the enactment of Act 1077, the "look back" period was three years. Ark. Code Ann. § 5-65-111(b)(2) (Repl. 1997). The new law became effective July 31, 1999. See Op. Att'y Gen. #99-120.

Appellant claims that use of his August 1996 DWI arrest and subsequent conviction to enhance his sentence violated the ex post facto and due-process clauses of the United States Constitution. His argument, however, is foreclosed by our recent decision in Berry v. State, 74 Ark. App. 141, ___ S.W.3d ___ (2001). Berry was convicted of DWI, fourth offense, based on three prior DWI convictions. Id. He argued that the punishment imposed for the fourth offense was improper because the three prior offenses occurred before the effective date of Act 1077 of 1999. We rejected Berry's argument by relying on Sims v. State, 262 Ark. 288, 556 S.W.2d 141 (1977), wherein our supreme court held that enhancement of punishment for the offense of driving under the influence of intoxicants byreference to prior convictions occurring before the sentence enhancement statute was effective did not involve a prohibited application of ex post facto law. Id. The supreme court disposed of Sims's argument by stating that the offense for which he was being charged occurred after the effective date of the Act and that the Act gave notice that any future offense would subject offenders to increased penalties. Id. Here, appellant was charged with his fourth DWI on January 19, 2000. The effective date of the amendment to the statute was July 30, 1999. Therefore, appellant had notice that any future offense would subject him to increased penalties, and the enhancement of penalties in this case for appellant's fourth DWI offense did not violate the prohibition against ex post facto laws.

Appellant also contends that he was denied due process of law. Due process requires only a fair warning and not actual notice. Trice v. City of Pine Bluff, 279 Ark. 125, 649 S.W.2d 179 (1983). It also requires a statute to be definite enough to provide a standard of conduct for those whose activities are proscribed. Long v. State, 284 Ark. 21, 680 S.W.2d 686 (1984). Act 1077 gave appellant notice and fair warning that any future DWI offenses would be subject to increased punishment and thus, he cannot complain that he did not receive due process of law. Accordingly, his conviction is affirmed.

Robbins and Griffen, JJ., agree.