Michael Jay Glenn v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

MICHAEL JAY GLENN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-108

OCTOBER 24, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION

[NO. CR 93-511]

HONORABLE JOHN PLEGGE,

CIRCUIT JUDGE

REVERSED AND DISMISSED

Appellant Michael Jay Glenn entered a negotiated plea of guilty to possession of cocaine on May 17, 1993. He was thereafter fined $250 and placed on five years' probation with the first two years supervised. On November 10, 1997, the State filed a revocation petition, and on January 20, 1998, the trial court revoked Mr. Glenn's probation. As a result of the revocation, Mr. Glenn was fined $50 and sentenced to three years' probation. On March 15, 2000, the State again filed a revocation petition, and the trial court revoked Mr. Glenn's probation and sentenced him to three years in prison. Mr. Glenn now appeals, arguing that the trial court lacked jurisdiction to revoke his probation and sentence him to prison, and that the trial court erred in relying on an unpublished opinion delivered by this court as a basis for its decision to exercise jurisdiction. The State concedes that the trial court lacked jurisdiction. We agree, and we reverse.

Our supreme court has held that a plea of guilty, coupled with a fine and a suspended imposition of sentence, constitutes a conviction, and a sentence by a circuit court to pay a fine is put into execution when the judgment of conviction is entered. Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). Where the appellant's original sentence is put into execution, the circuit court loses jurisdiction to amend or modify it. Id. In McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), the supreme court was asked to overrule Harmon v. State, supra, but declined to do so. In that case, the supreme court held that the trial court lost jurisdiction to modify appellant's sentence because appellant's sentence had been put into execution when he was originally fined and placed on probation. It stated that it was the State's burden to show that "our refusal to overrule Harmon would result in injustice or great injury," and that, "[t]he State has not met its burden." McGhee v. State, 334 Ark. at 546, 975 S.W.2d at 835.

In its brief, the State correctly asserts that Act 1569 of 1999 legislatively overruled McGhee v. State, supra, and provided circuit courts with the power to extend probation. See Ark. Code Ann. § 5-4-301(d)(2) (Supp. 2001). However, Act 1569 became effective on April 15, 1999, and the revocation and modification of Mr. Glenn's sentence occurred on January 20, 1998. Because the Act was not in effect at that time, the trial court lacked jurisdiction to modify Mr. Glenn's sentence. While Mr. Glenn did not appeal from the 1998 revocation, this was not necessary because the trial court's loss of jurisdiction over a defendant "is always open, cannot be waived, can be questioned for the first time on appeal,and can even be raised by this court." Pike v. State, 344 Ark. 478, 483, 40 S.W.3d 795, 799 (2001)(citing Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989)).

In the case at bar Mr. Glenn's sentence was put into execution on May 17, 1993, and thereafter could not be modified. When the trial court revoked his probation and sentenced him to prison on March 15, 2000, it lacked jurisdiction because his five-year probationary period had already expired.

Mr. Glenn's remaining argument is that the trial court erroneously relied on an unpublished opinion in concluding that it had jurisdiction to revoke his probation. Pursuant to Rule 5-2(d) of the Rules of the Arkansas Supreme Court, opinions delivered by the Arkansas Court of Appeals that are not designated for publication shall not be referred to by any court, except in instances of continuing or related litigation. While we agree with appellant that it was improper for the prosecution to refer to our unpublished opinion, due to our disposition of the first issue, it is a moot point.

Reversed and dismissed.

Baker and Roaf, JJ., agree.