Deanna Rudder v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR04-916

June 15, 2005

DEANNA RUDDER AN APPEAL FROM JOHNSON

APPELLANT COUNTY CIRCUIT COURT

[CR99-84-B]

V. HON. JOHN S. PATTERSON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Deanna Rudder appeals from the revocation of her probation, asserting that the trial court was without jurisdiction to modify her sentence of probation and a fine by subsequently sentencing her to a term of imprisonment. We disagree and affirm her probationary sentence.

Because appellant does not challenge the sufficiency of the evidence supporting revocation, only the relevant procedural facts are recounted. On April 20, 2000, appellant pled guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia, both of which she committed on July 23, 1999. She was placed on probation for sixty months, fined $1000, and ordered to pay court costs. On October 11, 2001, the State filed a petition to revoke appellant's probation on the ground that she had violated the terms of her probation. The trial court, on January 23, 2002, found that appellant violated the terms of her probation, but expressly declined to revoke her probation. Instead, the court added another condition, a jail term of 120 days in a regional punishment facility.

The State subsequently filed another petition to revoke appellant's probation on March 8, 2004. Following a hearing on this petition, the trial court revoked her probation and sentenced her to serve eighteen months in the Arkansas Department of Correction with judicial transfer to the Department of Community Correction. It also imposed a thirty-six month suspended sentence.

Appellant appeals from this order arguing that because her original sentence was placed into execution by virtue of the probationary sentence and fine, the trial court thereafter lacked jurisdiction to modify that sentence by imposing a prison sentence.1 However, her argument is without merit because the trial court did not "modify" her sentence and had jurisdiction, upon revocation, to impose a term of imprisonment.

Because appellant's original offenses for which probation were ordered occurred on July 23, 1999, they are governed by Act 1569 of 1999, which became effective on April 15, 1999. Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003). It is true that, prior to Act 1569, a trial court was without power to amend or modify the original sentence after a fine had been imposed. Id. However, Act 1569 amended Arkansas Code Annotated § 5-4-301(d) (Supp. 2003) to allow, inter alia, for modification of the original order placing a defendant on probation. Ark. Code Ann. § 5-4-301(d)(2)(A). Thus, trial courts are now specifically authorized to modify original court orders and may add penalties to those orders up to the statutory limits. Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002). Further, upon revocation, a trial court may impose any sentence that it might have originally imposed. Ark. Code Ann. § 5-4-309(f)(1)(A) (Supp. 2003); Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2003).

Appellant concedes that Act 1569 allows trial courts to modify probationary sentences and concedes the holdings in Moseley, supra, and Pierce, supra. Nonetheless, she purports to rely on Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001), for the proposition that once a sentence is placed into execution, the trial court is deprived of jurisdiction to amend or modify the sentence. However, her reliance on Pike is misplaced because the Pike holding was superceded by Act 1569. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002).

Moreover, appellant's argument fails because the trial court did not "modify" the original sentence, but rather, imposed a sentence following revocation that it could have imposed when she pled guilty. Pierce v. State, supra (holding the jail sentence imposed after revocation, where a defendant had originally received probation and a fine, was not a modification but was a sentence following revocation). Possession of marijuana with intent to deliver and possession of drug paraphernalia are both Class C felonies. Each offense is punishable by no less than three years and no more than ten years in prison. Ark. Code Ann. §§ 5-64-501 (Supp. 2003) & 5-4-401(a)(4) (Repl. 1997). Thus, at the time the trial court imposed probation, it could have sentenced appellant to serve a total of twenty years in prison. Accordingly, upon revocation, the trial court had jurisdiction to impose a lesser prison term of eighteen-months with an additional thirty-six months suspended.

Affirmed.

Bird and Vaught, JJ., agree.

1 Appellant additionally attempts to argue that Arkansas law does not authorize a trial court to impose a fine upon a defendant who is placed on probation because once a defendant is sentenced to revocation, the trial court thereafter loses jurisdiction to impose any additional punishment, including a fine. While she cites several statutes governing the imposition of fines, none support her novel proposition. Thus, her argument is not supported by convincing authority. Fouse v. State, 73 Ark. App. 134, 43 S W.3d 158 (2001).