Billy Hassell v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

BILLY HASSELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-171

December 12, 2001

AN APPEAL FROM SALINE COUNTY CIRCUIT COURT, FIRST DIVISION

CR95-29-1

HONORABLE GRISHAM PHILLIPS

REVERSED AND DISMISSED

In this probation revocation case, Billy Hassell contends that the trial court did not have jurisdiction to sentence him to the Arkansas Department of Correction on July 17, 2000, because his probation had been revoked on three prior occasions and the five-year term of probation had expired by July 2000. On October 29, 1994, Billy Hassell and his co-defendants set fire to a barn owned by Jerry Jones for which Hassell was charged with criminal mischief in the first degree. On February 6, 1995, Billy Hassell entered a negotiated plea of guilty to the charge of criminal mischief, and he was sentenced to five years' probation and was ordered to pay court courts, fines, and restitution to Mr. Jones in the amount of $5,000. On March 4, 1996, Hassell was found guilty of violating his probation, was sentenced to ten days' confinement in the Department of Community Punishment (DCP), and was ordered to continue his probation after his release. On November 8, 1996, Hassell pled guilty to violating his probation and was sentenced to serve 120 days' confinement in the DCP.

On December 7, 1998, the court amended the terms of Hassell's probation, and he was givena thirty-six month extension of his probation with the provision that he could be released early if the restitution was paid in full. On June 1, 2000, a petition to revoke Hassell's probation was entered, and on July 17, 2000, Hassell was again found guilty of violating his probation. He was sentenced to three years in the Arkansas Department of Correction with two years' suspended imposition of sentence.

On appeal, Hassell argues that the trial court lost jurisdiction over him when it entered the order on July 17, 2000. He contends that the trial court lost jurisdiction pursuant to McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), because his probation had previously been revoked on March 4, 1996, November 8, 1996, and on December 7, 1998. As such, Hassell claims that the trial court loses jurisdiction over a criminal defendant once his sentence is put into execution and that the trial court may not amend or modify a sentence. Additionally, he asserts that his term of probation expired before the July 2000 order was entered, and thus, the court lacked jurisdiction to revoke his probation.

The State concedes error in this appeal because the trial court revoked Hassell's probation on July 17, 2000, in violation of McGhee, supra, and thus, the trial court erred when it retroactively applied Ark. Code Ann. § 5-4-303(f). The State also concedes that the five year period of probation imposed on Hassell on February 6, 1995, had expired by the time of the July 2000 revocation, and as such, the trial court lacked jurisdiction to revoke Hassell's probation because he was no longer under probation.

A trial court loses jurisdiction to amend or modify the original sentence pursuant to Arkansas Code Annotated § 5-4-304 once a valid sentence is put into execution. Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). A plea of guilty, coupled with a fine and a suspended imposition of sentence, constitutes a conviction, and a sentence by the trial court to pay a fine is put into executionwhen the judgment of conviction is entered. Id.; Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). 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 it declined to do so. The supreme court held that the trial court lost jurisdiction to modify the appellant's sentence because the appellant's sentence had been put into execution when he was originally fined and placed on probation. The supreme court stated that "it is necessary as a matter of public policy, to uphold prior decisions unless a great injury or injustice would result." McGhee, 334 Ark. at 546.

Although Act 1569 of 1999 legislatively overruled McGhee, supra, and provided circuit courts with the authority to extend probation, Act 1569 did not become effective until April 15, 1999, and the first revocation and modification of Hassell's probation occurred on March 4, 1996. While Hassell did not appeal the probation revocations on March 4, 1996, November 8, 1996, and December 7, 1998, the trial court's loss of jurisdiction over a defendant may be raised for the first time on appeal and can be raised by this court. Pike, supra.

Hassell's sentence was put into execution on February 6, 1995, when he entered his negotiated plea of guilty, and his sentence could not thereafter be modified. Therefore, when the trial court revoked his probation and sentenced him to three years in the Arkansas Department of Correction on July 17, 2000, it lacked jurisdiction not only because his sentence was put into execution, but also because his five-year probationary period had already expired. Consequently, the order of revocation and sentence now appealed from was void, and we reverse and dismiss.

Reversed and Dismissed.

Robbins and Griffen, JJ., agree.