Paula Marie Battles v. State of Arkansas

Annotate this Case
ar04-066

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

PAULA MARIE BATTLES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-66

SEPTEMBER 8, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

[NO. CR 03-1156]

HONORABLE BARRY ALAN SIMS,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Paula Battles was convicted by a Pulaski County Circuit Court jury of failure to appear, a Class C felony. The jury was instructed that it was permitted to recommend alternative sentencing, which was not binding on the trial court. It recommended that appellant serve one year of supervised probation, 120 days of service in the county jail, and payment of a $2500 fine. The trial court declined to institute this alternative sentence, and instead sentenced appellant to three years of imprisonment. When defense counsel asked why the trial judge deviated from the recommendation when appellant did not have a criminal history, the judge replied that the jury's recommendation was inappropriate and that a prison sentence better served the interests of justice. Appellant then asked why the trial judge allowed her to have a jury trial if he could do that. This appeal followed. We affirm.

Appellant asserts on appeal that the trial court abused its discretion in disregarding the jury's sentence and giving the appellant a harsher sentence than probation. Citing Richards v. State, 309 Ark. 133, 827 S.W.2d 155 (1992), she asserts that as a general rule a jury sentence is mandatory, subject only to five exceptions set forth by Ark. Code Ann. § 5-4-103 (Repl. 1997), none of which are applicable here. See also Ewings v. State, Ark. App. , S.W.3d (March 24, 2004). Appellant further argues that the trial court abused its discretion in sentencing her to three years of imprisonment because the trial court failed to first consider the factors enumerated in Ark. Code Ann. § 5-4-301(b) and (c) (Supp. 2001) before imposing incarceration instead of probation. The State asserts that this argument is not preserved for appellate review, or alternatively, that the argument is without merit.

We observe that at the trial court level appellant's objection to her sentence was that her request for a jury trial was meaningless if the court was not going to follow the jury's recommendation. Inasmuch as her sole issue on appeal was not raised before the trial court, it has not been preserved for review. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003); Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998).

Affirmed.

Pittman and Hart, JJ., agree.