Terri L. Bagwell v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

MARGARET MEADS, JUDGE

DIVISION II

TERRI L. BAGWELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-208

November 1, 2000

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR-97-780, CR-97-827]

HON. JAMES ROBERT MARSCHEWSKI, CIRCUIT JUDGE

REBRIEFING ORDERED

This is an appeal from the revocation of appellant's probation. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Supreme Court and Court of Appeals of Arkansas, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is without merit.

Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of objections made by appellant and ruled on by the court, a record of all motions and requests made by the appellant and denied by the court, and a statement of the reasons why counsel considers there to be nothing in the record which will actually support the appeal. The clerk of this court furnished the appellant with a copy of her counsel's brief and notified her of her right to file a pro se statement of points on appeal. Appellant has not filed any points. In light of

appellant'sfailure to file any points, the State advised this court that it did not intend to file a brief in this case, and it has not done so.

From our review of the record, we are not convinced that appellant's appeal is wholly without merit. On June 3, 1998, appellant pleaded guilty to two counts of possession of drug paraphernalia and two counts of possession of marijuana. She was given a five-year suspended sentence conditioned on good behavior, and ordered to pay a $500 fine and $150 in court costs at the rate of $50 per month starting sixty days after her completion of a drug-rehabilitation program. Among the terms and conditions of appellant's suspended sentence was that she not possess or use marijuana. Appellant was also placed on adult probation for a period of one year with a monthly fee of $20 beginning August 1, 1998, and ordered to complete a residential drug-rehabilitation program with progress reports to be made to the prosecutor's office.

On September 17, 1998, the State filed a petition to revoke alleging appellant violated the conditions of her probation by failing to attend counseling or provide proof thereof. On November 13, 1998, the State filed an amended petition to revoke alleging that appellant had also failed to report to her probation officer, failed to pay probation fees as ordered, and failed to follow the rules of probation as ordered. In February and May 1999, the petition to revoke was continued for sixty days at appellant's request based upon her compliance with the M.R.T. drug rehabilitation program. Subsequently, appellant stopped attending the program, and on July 6, 1999, a hearing was held on the State's petition to revoke. At the conclusion of the hearing, the trial judge found that appellant had violated the terms andconditions of her suspended sentence, left her suspended sentence in force, and imposed a period of 120 days' confinement in the Regional Punishment Facility.

In Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), appellant was given a suspended imposition of sentence. The judgment order noted that imposition of sentence was suspended for one year based upon certain conditions and specifically mentioned payment of a $500 fine. After a hearing on a petition to revoke, the trial court ruled that her suspended sentence would remain in effect but that it would be modified by the addition of another $500 fine and a sentence of two weeks in the Crawford County Detention Center. On appeal our supreme court reversed, holding that because appellant's original sentence had been put into execution, the trial court lost jurisdiction to amend or modify it.

Effective April 15, 1999, the Arkansas Legislature amended Ark. Code Ann. § 5-4-304

adding subsection (c) and redesignating the remaining subsections. Subsection (c) provides:

Following a revocation hearing held pursuant to § 5-4-310 and wherein a finding of guilt has been made . . ., the court may add a period of confinement to be served during the period of suspension of imposition of sentence or period of probation, if no period of confinement was included in the original order placing the defendant on suspended imposition of sentence or probation.

Arkansas Code Annotated section 5-4-301 was amended at the same time, adding subsection (d)(2). That subsection provides:

(2) The entry of a judgment of conviction shall not preclude:

(A) The modification of the original order suspending the imposition of sentence on a defendant or placing a defendant on probation following a revocation hearing held pursuant to § 5-4-310; and

(B) Modifications set within the limits of §§ 5-4-303, 5-4-304, and 5-4-306.

In the instant case, appellant pleaded guilty to two counts of possession of drug paraphernalia and two counts of possession of marijuana. In addition to being given a five-year suspended sentence and being placed on adult probation, appellant was ordered to pay a $500 fine, which was specifically mentioned in the judgment order entered June 19, 1998. Because appellant's revocation hearing was held on July 6, 1999, and because of the amendment of the aforementioned statutes, we direct that this case be rebriefed by appellant's counsel and the State on the issue of the effect of the 1999 legislative amendments on prior case law.

Counsel's motion to withdraw is denied. A new briefing schedule is established, and appellant is directed to file a new brief on or before December 1, 2000, with the State's brief being due on or before January 2, 2001, and appellant's reply brief due on or before January 17, 2001.

Pittman and Hart, jj., agree.