ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
September 25, 2003

TERRIE WEAVER and

CORRINA PUCKETT

Appellants

v.

STATE OF ARKANSAS

CR 02-737

APPEAL FROM THE CIRCUIT COURT OF HOT SPRING COUNTY, CR 2001-113-2, HONORABLE PHILLIP H. SHIRRON, JUDGE

AFFIRMED

Per Curiam

Appellants pleaded guilty in Hot Spring County Circuit Court to aggravated robbery and criminal attempt to commit first-degree murder. Pursuant to a plea agreement, the State requested that appellants only be sentenced for aggravated robbery. Judgments of conviction entered against appellants on October 9, 2001, reflect that they were convicted of aggravated robbery. Appellant Weaver was sentenced to forty years' imprisonment, and appellant Puckett was sentenced to twenty-five years' imprisonment.

Appellants subsequently filed separate, but nearly identical, pleadings styled as "motions to withdraw plea and/or Rule 37 petition." Appellants alleged in their petitions that aggravated robbery is a lesser-included offense of criminal attempt to commit first-degree murder, and as a result, their guilty pleas to both offenses violated their protection against double jeopardy. Further, appellants contended that their counsel were ineffective in failing to advise them of the alleged double-jeopardy violation and in allowing them to plead guilty to both offenses. The circuit court denied appellants' petitions without a hearing, and we now affirm that order.

A violation of the Double Jeopardy Clause of the United States Constitution results in dismissal of the State's case. See, e.g., State v. Hulum, 349 Ark. 400, 78 S.W.3d 111 (2002). An accused, however, may be charged and prosecuted for different criminal offenses, even though one offense is a lesser-included offense, or an underlying offense, of another offense. Hill v. State, 325 Ark. 419, 428, 931 S.W.2d 64, 69 (1996). Although a defendant may be found guilty of an offense and an underlying, or lesser-included offense, no double jeopardy results when the judgment of conviction is entered for only one offense. Id. Moreover, a sentenced pronounced in open court is not effective until a judgment and commitment order is entered of record in accordance with our Administrative Order No. 2. Bradford v. State, 351 Ark. 394, 401, 94 S.W.3d 904, 909(2003).

The judgment and commitment orders entered of record in this case reflect that appellants were convicted of one offense, aggravated robbery, even though they pled guilty to two offenses in open court. Therefore, double jeopardy does not attach to the facts presented here.

Furthermore, we cannot hold appellants' counsel ineffective. The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Absent a showing of prejudice, we affirm a denial of postconviction relief based upon an allegation of ineffective assistance of counsel.

No violation of the protection against double jeopardy occurred in this case. As such, appellants cannot show any prejudice resulting from the allegedly deficient performance of their attorneys in failing to advise appellants of a double jeopardy risk or in allowing them to plead guilty. Accordingly, the circuit court's order denying relief is affirmed.

Affirmed.

Thornton, J., not participating.