dissent">David Newbern, Justice,

dissenting. The crux of the majority opinion is its conclusion that the probation and sentencing provisions of the Criminal Code were made applicable to violations of the Controlled Substance Act because that Act made no provision for suspension or probation. The basis of that conclusion is the language quoted from the Criminal Code and codified in Ark. Code Ann. § 5-4-302 (1987):

When a defendant who pleads or is found guilty of an offense defined by a statute not a part of the code is eligible for suspension or probation pursuant to that statute, the court may make any disposition permitted by that statute.

If “that statute” is a reference to the Controlled Substances Act, or the particular part of the Act pursuant to which Pennington was convicted, then for the Trial Court to be allowed to consider probation, we must at least be able to find something in the Controlled Substances Act which allows it. I cannot find it.

While I understand the majority opinion’s conclusion that the failure to provide for probation as an alternative sentence for one convicted of possession of a controlled substance with intent to deliver relegates the court to the probation provisions of the Criminal Code, I do not agree.

By providing for probation as a possible sentence for one convicted of possession under the Controlled Substances Act at Ark. Code Ann. § 5-64-407 (1987), but not providing for it for one convicted of possession with intent to deliver, the General Assembly made it clear to me that drug dealers are not to be entitled to a probationary sentence.

I respectfully dissent.

Holt, C.J., and Brown, J., join in this dissent.

Citation profile

How this case has been treated — in progress