concurring. I believe any problem with the decision in this case results from an Act of the General Assembly and if a change is needed, it should be made by the General Assembly.
George K. Cracraft, Judge, concurring. In considering the merits of this appeal I have carefully and critically analyzed the decision in Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980) in a vain attempt to find a distinction or other reason why it should not be controlling. I have been unable to do so. It holds exactly what the majority opinion says it does and we are firmly bound by it even though this suspended sentence was imposed before Ross was decided.
I have found it difficult to believe that the Supreme Court intended to extend the requirement of Ark. Stat. Ann. § 41-1203 (4) (Repl. 1977) as far as its opinion seems to go or, if it did, that the Legislature in its enactment actually had the intention ascribed to it in that opinion.
I had no difficulty in accepting such a rule applicable to restrictions on non-felonious conduct. It is certainly a reasonable requirement that a probated felon be informed of the type of non-criminal conduct which might result in revocation. It is-reasonable to assume that he might not know that his failure to pay a fine or make restitution within a given time might result in imprisonment. It is a sensible assumption that he might not otherwise know that he must refrain from frequenting unlawful or designated places or consorting with designated persons who might adversely influence his future conduct. Some of the restrictions on non-criminal conduct which a court may impose as a condition of his suspension are set out in the Act and cover over three-quarters of a page. Basic fairness dictates that these restrictions, intended to assist him in leading a law-abiding life, be given in writing (1) to assure that he fully understands the condition of his probation and (2) as a means of refreshing his memory from time to time. Without such a memorandum and explanation of it he might easily forget or misinterpret one or more of his many restrictions and be dealt with unfairly.
My concern is that we are here compelled by Ross to reverse the revocation of a suspended sentence imposed on a person convicted for several felonies simply because he was not informed in writing what everyone already knows — that he must not commit another one. Nor am I able to relate such a rule to any notions of due process, fair play and deterrences as was further reasoned by Ross. He would certainly not have been permitted to interpose as a defense to his initial convictions that he had never been informed in writing that he would go to jail if he committed burglary and theft. It is as incongruous to me that he be permitted to interpose that defense in a revocation hearing.
This case, in which the suspension was imposed before Ross was published, is not unique in that respect. There must be many other such suspended or probated sentences still in effect. The required retroactive application of Ross to these cases has, and will for some time to come, cause this legislation, intended to prevent injustice to an accused, to result in an unnecessary and unjust burden on the public and the orderly administration of justice. It would be my sincere hope that the legislature would take the needed action to correct this.
I reluctantly concur in the result, and am authorized to state that Cooper, J., joins in this concurrence.