Tammy LeMaire v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

MARCH 20, 2003

TAMMY LEMAIRE

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 02-732

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, CR 98-1438, HONORABLE JOHN W. LANGSTON, JUDGE

AFFIRMED

In 1998, appellant entered a plea of guilty to theft of property. The circuit court sentenced her to three years' probation conditioned upon compliance with written rules of conduct, and fined her $300 plus court costs. In October of 2000, a petition to revoke appellant's probation was filed. Appellant admitted that she violated the terms and conditions of her probation, and the circuit court sentenced her to three years' imprisonment on March 12, 2002. That same day, appellant filed a motion to correct illegal sentence pursuant to Ark. Code Ann. § 16-90-111. The circuit court treated the motion as a petition for postconviction relief pursuant to Ark. R. Cr. P. 37, and denied it. We affirm.

Relying on McGehee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), and Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), appellant asserts that the circuit court lacked jurisdiction to revoke her probation. Prior to Act 1569 of 1999, a circuit court did not have jurisdiction to modify or amend an original sentence once a valid sentence was put into execution. See Moseley v. State,349 Ark. 589, 80 S.W.3d 325 (2002). Appellant submits that the revocation of her probation constituted a modification of her original sentence, which was executed in 1998, and thus, the circuit court lacked jurisdiction to do so.

Here, the circuit court did not modify appellant's sentence. Rather, it revoked her probation pursuant to Ark. Code Ann. § 5-4-309 (Repl. 1997), which provides in relevant part:

(d) If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.

(e) The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.

(f)(1)(A) If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty.

(B) Provided, that any sentence to pay a fine or to imprisonment, when combined with any previous fine or imprisonment imposed for the same offense, shall not exceed the limits of § 5-4-201 or § 5-4-401, or, if applicable, § 5-4-501.

Ark. Code Ann. § 5-4-309 (d) to (f) (Repl. 1997).

A warrant was issued for appellant's arrest on October 24, 2000, before the expiration of her probation period. Appellant subsequently pled guilty to violating the conditions and terms of her probation, and the circuit court sentenced appellant to three years' imprisonment, as it could have done originally instead of imposing probation. Appellant's reliance on McGhee and Harmon is misplaced because those cases do not hold that a probated sentence that includes a fine cannot be revoked. Accordingly, the circuit court did not err in denying appellant's petition for postconviction relief.

Affirmed.

Corbin, J., not participating.