After an August 14, 1995, bench trial, appellant Jerry Sam Mackey was found guilty of the offense of residential burglary in violation of Ark. Code Ann. § 5-39-201(a)(2) (Repl. 1993) and being an habitual offender under Ark. Code Ann. § 5-4-501 (Repl. 1995). Mr. Mackey now appeals from the September 12, 1995, judgment of the Pulaski County Circuit Court which reflected that he was sentenced as an habitual offender, pursuant to Ark. Code Ann. § 5-4-501. Mr. Mackey was sentenced to a 108-month term of imprisonment in the Arkansas Department of Correction. The evidence supporting appellant’s conviction is not in dispute, and the sufficiency of the evidence to sustain the conviction is not challenged on appeal. Mr. Mackey challenges only his sentence on appeal, maintaining that the State’s evidence that he had been convicted of three prior felonies was insufficient to justify the court’s decision to sentence him as an habitual offender.
The State, citing Fellows v. State, 309 Ark. 545, 828 S.W.2d 847 (1992), argues that appellant’s sufficiency argument was not properly preserved for our review, and that as a result, we are precluded from addressing the merits of the issue on appeal. It is undisputed that appellant failed to object to the insufficiency of the evidence to prove his habitual status at trial.
The Fellows case is one of a line of cases following the supreme court’s holding in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In Wicks, an appeal from a jury verdict finding Wicks guilty of two counts of rape, the supreme court addressed two of Wicks’s arguments, neither of which was supported by a contemporaneous objection at trial. In discussing the deficiency, the court first noted the general, well-established rule that failure to object to an alleged error at trial results in waiver of the argument on appeal. The court then noted four exclusive exceptions to the rule: 1) when the death penalty is sought by the State and the court fails to notify the jury of matters essential to consideration of the death penalty; 2) where the trial judge commits error of which defendant’s counsel has no knowledge or opportunity to object; 3) possibly where the trial court is derelict in its duty to intervene without objection to correct a serious error by admonition or order of mistrial; and 4) possibly where the asserted error is one “affecting a substantial right.”
We note from the outset that while Wicks and its progeny all were appeals from jury verdicts, the current appeal is from a bench trial; the procedural requirements are different. One such difference was clarified recently in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). The supreme court held in Strickland that at bench trials, no directed-verdict motion based on the sufficiency of the evidence need be made, as such would be “superfluous”; “the judge would only be directing his own verdict.” The court stated:
Our supposition in the Igwe case was that a Trial Court, sitting as a trier of fact, would be sufficiently aware of the evidence and the elements of the crime that no such motion would be necessary, and that is why our rales do not require the motion to dismiss in non-jury-trial cases. We adhere to that supposition today.
Id. at 318.
Because the supreme court has essentially relieved trial counsel of the duty to apprise the trial court of deficiencies in the evidence, including missing elements of proof, it has concomitantly placed the burden upon trial judges to “step in” and order dismissal or other appropriate remedy where the evidence is insufficient. Here the court should have directed the State to produce evidence beyond a reasonable doubt that appellant had been convicted of three prior felonies as such was an element of the allegations contained in the information.
The argument has been made that appellant has misclassified his argument as one of the insufficiency of the evidence when it should really be countenanced as a challenge to an illegal sentence. That argument has no merit. First of all, our bifurcation system created two separate and distinct phases of a criminal trial: guilt and punishment. Here, the only evidence of appellant’s priors was presented during the State’s case in chief, in an attempt to prove the habitual element; no certification of priors was entered or discussed at sentencing. Secondly, while being an habitual offender is not a separate offense, it is an enhancement provision that requires specific elements of proof that the record does not reflect were introduced in this case. Both the information by which he was charged and the judgment and commitment order refer to appellant’s habitual status under § 5-4-501, not § 16-90-803 (Supp. 1995). The only “proof” that appellant had prior convictions was the State’s contention “we have certification of defendant’s priors.” Because a prosecutor’s statements are not evidence, there is nothing in the record that justifies the court’s finding that appellant should be sentenced as an habitual. See Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). Although it was enacted at a later date, § 16-90-803 contains no repealing clause, and does not conflict with § 5-4-501; the range of sentencing is essentially the same under both statutes. Accordingly, the State has the option of alleging specific habitual status in the information or simply charging the underlying offense. Under the grid, a convicted felon’s criminal history is automatically considered and applied in compiling a sentence. The record here contains neither a copy nor the original presentence report and reflects that the State’s only attempt to prove prior felony convictions was made during the guilt phase of trial. Accordingly, the State’s failure to provide proof of appellant’s priors during the sentencing phase requires reversal of the court’s finding that appellant was an habitual offender, and remand for resentencing.
Reversed and remanded for resentencing.
Robbins, C.J., and Stroud and Jennings, JJ., agree. Rogers and Pittman, JJ., dissent.