Opinion
Appeal from Greene Circuit Court; Samuel Turner, Jr., Judge.
Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.
Mark Pryor, Att'y Gen., by: Misty Wilson Borkowski, Ass't Att'y Gen., for appellee.
Rehearing Denied.
SUPPLEMENTAL CONCURRING OPINION ON DENIAL OF PETITION FOR REHEARING DELIVERED OCTOBER 3, 2001
SAM BIRD, Judge, concurring.
In Hughes v. State, 74 Ark.App. 126, 46 S.W.3d 538 (2001), handed down on June 6, 2001, this court reversed the trial court's grant of leave to the State to amend its information to include a charge of attempt to manufacture a controlled substance. This amendment was subsequent to the trial court's grant of a directed verdict in favor of the defendant on the charge of manufacturing a controlled substance. We reversed on double-jeopardy grounds.
The court relied on Hanner v. State, 41 Ark.App. 8, 847 S.W.2d 43 (1993), and held the State to the burden of showing that the new charge would not be proven with the same conduct as the charge on which the trial court granted a directed verdict. Hughes v. State, supra. The same-conduct test was articulated by the United States Supreme Court in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). However, in United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), the United States Supreme Court abandoned the same-conduct test, returning to the Blockburger same-elements test as the sole constitutional test for double jeopardy. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). This court has acknowledged the return to Blockburger as the sole constitutional test for double jeopardy. Penn v. State, 73 Ark.App. 424, 44 S.W.3d 746 (2001); Beasley v. State, 47 Ark.App. 92, 885 S.W.2d 906 (1994).
I concur in the denial of the State's petition for rehearing because under either the same-conduct or the same-elements test, the charge of attempt to manufacture a controlled substance would be barred by double jeopardy in this case. However, I write separately to express my belief that the State was held to the wrong burden because of the court's application of the same-conduct test.