dissenting.
Arkansas Code Annotated section 5-2-302(a) (Repl.2006) states, “No person who lacks the capacity to understand a proceeding against him or her or to assist effectively in his or her own defense as a result of mental disease or defect shall be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.” Mr. Smith has been sentenced to 36 months in the Arkansas Department of Correction without being afforded the due-process safeguards that our criminal code requires. In affirming this case, the majority has made mistakes of both law and fact.
First, the majority has erred in relying on Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990), as justification for treating a defendant in a revocation proceeding differently than a defendant facing an original criminal charge. I acknowledge that Pyland supports such an approach, given the codification of Arkansas Code Annotated section 5-2-305(a) as it existed in 1990.3 That version of the statute made mental evaluations available only to “a defendant 17charged in circuit court.” Ark.Code Ann. § 5-2-305(a) (1987). This fact was noted by the Pyland court and provided the basis for its holding. Nonetheless, the Pyland court also recognized that the 1987 version of section 5-2-305 did not fully comport with due process.
Subsequently, the legislature broadened the reach of section 5-2-305 and rectified the due-process problem. While the current version of the statute retains some subsections that specifically deal with “a defendant charged in circuit court,” the legislature has made mental evaluations available to all “prosecutions.” Black’s Law Dictionary defines in part a prosecution |8as “a criminal action.” 1298 (8th ed.2004). Even the majority apparently concludes that a revocation proceeding is a criminal action. Therefore, a plain reading of the current version of section 5-2-305 indicates that the legislature effectively overruled Pyland, and that case is a dead letter. However, for a reason not apparent to me, the majority struggles to apply both section 5-2-305 and Pyland and its progeny to the case at bar, despite the fact that Pyland is based on the fundamental premise that there is no statutory authority governing mental evaluations in revocation proceedings.
As a direct consequence of this flawed reasoning, the majority has written into the statute a requirement that a person facing a revocation proceeding must convince the trial court that his mental faculties are impaired before the trial court is obligated to order an evaluation. This judge-made requirement puts the cart before the horse. A request for a mental evaluation is a request to secure an expert’s opinion as to whether a person is fit to proceed in a criminal action, not confirm the validity of a trial judge’s opinion.
Section 5-2-305(B) requires that a mental evaluation be ordered if “there is reason to believe that the mental disease or defect of the defendant will or has become an issue in the cause.” (Emphasis added.) Here, the trial court had reason to believe that Mr. Smith’s mental disease or defect would become an issue because his trial counsel raised it. It is important to note that this subsection says “cause,” not trial. Again, there is no provision for an eviden-tiary hearing to determine the validity of the request, only that it be made, however informally. This is the very point on which our recent decision in Jimenez v. State, 2010 Ark. App. 804, 379 S.W.3d 762, handed down on December 8, 2010, overruled Holden v. State, 104 Ark.App. 5, 289 S.W.3d 125 (2008).
Finally, lost in the majority’s opinion is the trial judge’s rationale for refusing to allow a continuance for a mental evaluation. The trial court denied the motion because Mr. Smith’s trial counsel failed to ask for the evaluation at an earlier appearance and therefore the request was therefore untimely. Denying the motion was clearly the wrong sanction. While Arkansas Code Annotated section 5-2-304(a) does require a defendant to “notify the prosecutor and the court at the earliest practicable time,” subparagraph (b) provides that failure to do so only “entitles the prosecutor to a continuance that for limitation purposes is deemed an excluded period granted on application of the defendant.”
The majority also makes a significant mistake of fact. It asserts that the only basis for Mr. Smith’s trial counsel to request a mental evaluation was that “Smith had no recollection of the offense that brought about the revocation and that Smith had extreme memory problems.” In reality, a fair interpretation of Mr. Smith’s memory problems, as described by his trial counsel, could have been symptoms of a much larger problem. His trial counsel directed the trial court’s attention to Mr. Smith’s head where there is “a big dent in it about the size of a human fist.” The court was told that the “dent” was caused by a train accident that resulted in Mr. Smith being in a coma for approximately a month. The significance of the described injury should be interpreted by an expert, not left to a trial judge’s speculation.
BROWN, J., joins.
. In 1990, section 5-2-305(a) read as follows:
Whenever a defendant charged in circuit court:
(1) Files notice that he intends to rely upon the defense of mental disease or defect, or there is reason to believe that mental disease or defect of the defendant will or has become an issue in the cause; or
(2) Files notice that he will put in issue his fitness to proceed, or there is reason to doubt his fitness to proceed, the court, subject to the provisions of §§ 5-2-304 and 5-2-311, shall immediately suspend all further proceedings in the prosecution. If a trial jury has been impaneled, the court may retain the jury or declare a mistrial and discharge the jury. A discharge of the trial jury shall not be a bar to further prosecution.
The amended version of section 5-2-305(a) that was in effect for the case at bar reads as follows:
(a)(1) Subject to the provisions of §§ 5-2-304 and 5-2-311, the court shall immediately suspend any further proceedings in a prosecution if:
(A) A defendant charged in circuit court files notice that he or she intends to rely upon the defense of mental disease or defect;
(B) There is reason to believe that the mental disease or defect of the defendant will or has become an issue in the cause;
(C) A defendant charged in circuit court files notice that he or she will put in issue his or her fitness to proceed; or
(D) There is reason to doubt the defendant's fitness to proceed.
(2)(A) If a trial jury has been impaneled, the court may retain the jury or declare a mistrial and discharge the jury.
(B) A discharge of the trial jury is not a bar to further prosecution.