Orvil Dale Loftis v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ORVIL DALE LOFTIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-438

December 7, 2005

APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT

[NO. CR-2003-38]

HON. HAROLD S. ERWIN,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Orvil Dale Loftis appeals from an order of the Jackson County Circuit Court granting the State's petition to revoke his suspended imposition of sentence for four drug convictions and sentencing him to respective terms of 480 months, 120 months, twelve months, and twelve months, to be served concurrently in the Arkansas Department of Correction. On appeal, he argues that the trial court erred by placing him on a suspended sentence thereby creating a sentence that was illegal on its face. We affirm.

On November 5, 2003, Loftis pleaded guilty to Class Y felony possession of methamphetamine with intent to deliver, Class C felony possession of Xanax with intent to deliver, misdemeanor possession of marijuana, and misdemeanor possession of an instrument of a crime. He received a thirty-six-month suspended imposition of sentence. On February 18, 2005, the State petitioned to revoke, alleging that Loftis had committed several criminal offenses and had failed to pay his fines and costs as ordered, which violated the conditionsof his suspended imposition of sentence. After a hearing, the trial court granted the State's petition.

On appeal, Loftis argues for the first time that the trial court erred in placing him on a suspended sentence for the Class Y felony, thereby creating a sentence that was illegal on its face1. He asserts that the plain language of Arkansas Code Annotated § 5-4-101(e)(1)(A)(iii) (Repl. 1997) specifically provides that no defendant convicted of a Class Y felony may be placed on probation. However, citing Elders v. State, 321 Ark. 60, 900 S.W.2d 170 (1995), he concedes that our supreme court has determined that when Act 192 of 1993 deleted the original subsection (F)2 from Arkansas Code Annotated section 5-4-301(a)(1) (1987), the legislature authorized probation, and "by analogy," suspended imposition of sentence, for those offenses. Nonetheless, Loftis urges us to "revisit the issue." We find this argument to be without merit.

It is axiomatic that the court of appeals does not have the authority to overrule or "revisit" precedent handed down by our supreme court. See Conway v. State, 62 Ark. App. 125, 969 S.W.2d 669 (1998). The supreme court's interpretation of Act 192 of 1993 leaves us no other conclusion than that suspended imposition of sentence was a valid sentencing alternative at the time that Loftis pleaded guilty to Class Y felony possession of methamphetamine with intent to deliver. See Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001); Elders v. State, supra. Therefore, we hold that Loftis's 2003 sentence was not illegal on its face or invalid in any other way. Accordingly, we affirm.

Affirmed.

Pittman, C.J., and Gladwin, J., agree.

1 Arkansas appellate courts treat allegations of void or illegal sentences much like jurisdictional questions, which can be raised for the first time on appeal. See, e.g., Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004).

2 Act 192 is entitled "AN ACT to Amend Arkansas Code 5-4-104 and 301 to Allow the Suspension of Sentences for Certain Drug Offenses; and for Other Purposes.