James Briggs v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

JAMES BRIGGS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-65

October 31, 2001

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT

[NO. CR-95-175]

HON. DAVID L. REYNOLDS,

CIRCUIT JUDGE

REVERSED AND DISMISSED

In 1995, the appellant in this probation revocation case pled guilty to possession of a controlled substance with intent to deliver, and was fined $5,200.00 and placed on probation for a period of five years. The State subsequently filed a petition to revoke, alleging that appellant violated the conditions of his probation by receiving new charges and, in December 1997, the circuit court entered a probation revocation order finding that appellant had violated the conditions of his probation and sentencing him to fourteen days' incarceration. The State filed another petition to revoke in February 2000. Over appellant's objection that it lacked jurisdiction to do so, the circuit court again revoked appellant's probation and sentenced him to 180 days' incarceration. From that decision, comes this appeal.

For reversal, appellant contends that the trial court lacked authority to revoke his probation and sentence him to incarceration when it had already done so previously. We agree, and we reverse.

The key issue in this case is whether the order entered in December 1997 was in fact a probation revocation and imposition of sentence. The order of December 22, 1997, is ambiguous because it is styled a probation revocation and it sentences appellant to a term of fourteen days in jail, but nevertheless provides that this action "shall not affect the balance of [appellant's] probationary period." This cannot be correct. If the order is, in fact, a revocation, it will affect the balance of appellant's probationary period as a matter of law.

In cases where a sentence has not been placed into execution, a defendant can subsequently be sentenced to a period of "shock" incarceration without revoking his probation pursuant to Ark. Code Ann. § 5-4-304 (Supp. 1999), which provides that:

(a) If the court suspends the imposition of sentence on a defendant or places him on probation, it may require as an additional condition of its order that the defendant serve a period of confinement in the county jail, city jail, or other authorized local detentional, correctional, or rehabilitative facility at whatever time or consecutive or nonconsecutive intervals within the period of suspension or probation as the court shall direct.

(b) An order that the defendant serve a period of confinement as a condition of suspension or probation shall not be deemed a sentence to a term of imprisonment and the court need not enter a judgment of conviction before imposing such a condition.

(c) Following a revocation hearing held pursuant to § 5-4-310 and wherein a finding of guilt has been made or the defendanthas entered a plea of guilty or nolo contendere, 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.

(d)(1) The period actually spent in confinement pursuant to this section shall not exceed one hundred twenty (120) days in the case of a felony or thirty (30) days in the case of a misdemeanor.

(2) For purposes of this subsection, any part of a twenty-four-hour period spent in confinement shall constitute a day of confinement.

(e) If the suspension or probation of the defendant is subsequently revoked and the defendant is sentenced to a term of imprisonment, the period actually spent in confinement pursuant to this section shall be credited against the subsequent sentence.

Although this statute explicitly provides for incarceration as an additional condition of an order, it is not applicable in the present case. A trial court loses jurisdiction to amend or modify the original sentence pursuant to § 5-4-304 once a valid sentence is put into execution. Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). A plea of guilty, coupled with a fine and probation, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). And that is precisely what we have in the present case - appellant pled guilty, was fined, and was put on probation. Consequently, if the order of December 22, 1997, was intended to impose an additional condition to theoriginal order, the trial court lacked jurisdiction to do so because a valid sentence was put into execution when he was fined.

Judgments are generally construed like other instruments and the determinative factor is the intention of the court, gathered from the judgment itself and the record, including the pleadings and the evidence; it is to be presumed that the judgment is valid. Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999). We think that the December 1997 order must be seen as a revocation of appellant's probation because a sentence was actually imposed and executed. Furthermore, when a court grants unauthorized dual judgments of sentence and one is imposed and served, there is an election by operation of law in favor of the sentence actually imposed; the other is void. Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). Consequently, we hold that the subsequent order of revocation and sentence now appealed from was void, and we reverse and dismiss.

Reversed and dismissed.

Vaught and Neal, JJ., agree.