Jones v. State

*ADVREP*CA9                  EN BANC









DAVID G. JONES
                     APPELLANT

V.


STATE OF ARKANSAS
                      APPELLEE



CA CR 95-555

                                                    June 19, 1996


APPEAL FROM THE COLUMBIA COUNTY
CIRCUIT COURT [CR87-54]

HONORABLE JOHN M. GRAVES,
CIRCUIT JUDGE


REVERSED AND DISMISSED





                   John F. Stroud, Jr., Judge.



     Appellant, David G. Jones, pled guilty to charges of theft,
and on March 26, 1987, was placed on probation for five years and
ordered to pay a fine of $500, attorneyþs fees, and court costs. 
He was not required to make restitution or reparation.  On March 6,
1992, the trial court ordered that appellantþs probationary period
be extended for five years without prejudice to appellant to
petition the trial court to terminate the probation upon
appellant's compliance with the orders of the trial court.  The
order noted that appellant had failed to comply with the conditions
of probation by not paying the fine and costs previously ordered. 
On March 20, 1992, the State filed a petition for revocation of
probation.  On July 30, 1992, appellant filed a motion to dismiss
in which he requested the dismissal of the revocation petition
filed on March 20, 1992, and the setting aside of the order
extending his probation.  The trial courtþs docket sheet shows that
on October 25, 1993, the trial court wrote, þMotion to Dismiss
granted.þ
     On December 7, 1994, and January 18, 1995, the State filed
petitions to revoke appellantþs probation. At a revocation hearing
held January 26, 1995, appellant argued that his probation should
not have been extended, that his July 30, 1992, motion to dismiss
was granted by the trial court on October 25, 1993, and that the
petition for revocation should not be considered.  The trial judge
stated that he did not think that he granted the motion to dismiss
on the basis that he lacked authority to extend appellant's
probation.  He also stated that if he did grant it for that reason,
it was in error, as the trial court retains jurisdiction over a
probationer until such time as he fully complies with all
conditions of his probation.  The trial court denied appellantþs
motion to dismiss the petition to revoke probation because the
order extending his probation either for five years or until he
complied with the conditions of his probation was valid.  At the
conclusion of the hearing, the trial court revoked appellantþs
probation and sentenced him to eight years in the Arkansas
Department of Correction.
     Appellant first argues that the trial court erred in extending
his probation without notice or a hearing.  His allegation of
prejudice is that he could have argued at such a hearing that the
trial court did not have authority to extend his probation.  His
second argument is that the trial court improperly extended his
probation because it lacked the authority to do so.  Because we
reverse based on appellant's second argument, we do not address his
first argument.
     Appellee contends that, by analogy to Ark. Code Ann.  5-4-
303(f), our holding in Basura v. City of Springdale, 47 Ark. App.
66, 884 S.W.2d 629 (1994), that the trial court retains
jurisdiction over a criminal defendant until all fines and costs
are paid, should permit the trial court to extend probation in
cases where the defendant has failed to pay fines and costs. 
Basura does not apply to the facts of this case, and no analogy or
inference can be drawn from that holding that would allow Ark. Code
Ann.  5-4-303(f) to apply.  
     In Basura, the defendant was arrested pursuant to a summons
issued in accordance with Ark. Code Ann.  5-4-203 (Repl. 1993)
which specifically grants the trial court the authority to enforce
payment of fines and costs.  The issue presented in that case was
whether the trial court retained jurisdiction to enforce payment of
fines and costs under Ark. Code Ann.  5-4-203 until such time that
the fines and costs have been paid.  The trial court did not
attempt to change the defendantþs sentence or purport to act under
the authority of Ark. Code Ann.  5-4-303, and our holding in
Basura was limited to a determination of the trial courtþs
jurisdiction to enforce payment of fines and costs pursuant to Ark.
Code Ann.  5-4-203.  Thus, we do not find appelleeþs reliance on
Basura persuasive.
     The trial courtþs order extending appellantþs probation,
purports to rely upon Ark. Code Ann.  5-4-303(f)(1987) which
provides:
     If the court has suspended the imposition of a sentence
     or placed a defendant on probation conditioned upon his
     making restitution or reparation and the defendant has
     not satisfactorily made all his payments when the
     probation period has ended, the court shall have the
     authority to continue to assert its jurisdiction over the
     recalcitrant defendant and extend the probation period as
     it deems necessary or revoke the defendantþs suspended
     sentence.

It is undisputed in this case that appellant was never ordered to
pay any restitution or reparations.  Thus, Ark. Code Ann.  5-4-
303(f) does not apply to this case, and the trial court erred in
relying upon it for its authority to extend appellantþs probation
for his failure to pay the fine and costs.
     We hold that the trial courtþs order of March 6, 1992,
extending appellantþs probation was an invalid attempt to modify
the original sentence in this case.  The trial courtþs original
judgment on appellantþs guilty plea sentenced him to probation for
five years, a fine of $500, and ordered him to pay attorneyþs fees
and court costs.  A guilty plea coupled with a fine and either
probation or a suspended imposition of sentence constitutes a
conviction, which, in turn, entails execution.  See Ark. Code Ann.
 5-4-301(d)(1)(Repl. 1993) and Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994).  A trial court cannot modify or amend the
original sentence once a valid sentence is put into execution. 
DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993).  The trial
court was without authority to modify appellantþs sentence, and the
order extending appellantþs probation was invalid.  Thus,
appellantþs probationary period expired on March 26, 1992. 
Likewise, the trial courtþs purported revocation of appellantþs
probation on January 26, 1995, was invalid.
     Reversed and dismissed.
     Pittman, Neal, and Griffen, JJ., agree.
     Jennings, C.J., and Rogers, J., concur.