Debbie Lynn Jacks v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

DEBBIE LYNN JACKS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-291

November 14, 2001

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT,

[CR 98-107-I]

HONORABLE JOHN HOMER

WRIGHT, CIRCUIT JUDGE

REVERSED AND DISMISSED

Appellant, Debbie Jacks, pleaded guilty on August 3, 1998, to the offense of theft of property by deception over $500 and was placed on five years' probation. In addition to requiring appellant to pay restitution to the Department of Human Services for obtaining excess food stamps, another condition of her probation was that she pay restitution of $1,432.64 to the Garland County Hot Check Coordinator for hot-check charges unrelated to the offense for which she was placed on probation. In return for this condition of probation, the State agreed to nolle prosequi the pending hot-check charges against appellant. On December 29, 1999, the State filed a petition to revoke appellant's probation, alleging that she had failed to apprise her probation officer of her change of address and that she had failed to make any restitution on the hot checks. At the hearing, theState informed the trial court that it intended to go forward on its revocation petition strictly on the basis

that appellant had failed to pay restitution on the hot checks. After hearing the evidence, the trial judge found that appellant had failed to make restitution, revoked her probation, and sentenced her to seven years in the Arkansas Department of Correction, with four years suspended conditioned upon the payment of the previously ordered restitution. The trial judge also entered a civil judgment against appellant for the amount of restitution owed to the hot-check victims.

Appellant now appeals, arguing that the trial judge had no authority to order restitution on unrelated hot checks for which she had not been convicted as a condition of her probation for the offense of theft by deception; therefore, he had no authority to revoke her probation or issue a civil judgment based on her failure to make restitution on the hot checks. In its brief, the State concedes that the trial court erred in revoking appellant's probation based upon failure to pay restitution for hot checks that were unrelated to the offense for which appellant was on probation. We agree; therefore, we reverse and dismiss the revocation of appellant's probation.

Although appellant never raised this argument below, she may do so for the first time on appeal because she is alleging that the trial judge had no authority to revoke her probation based upon failure to make restitution on hot checks for which she was never charged. An appellant may raise on appeal the issue of an illegal sentence without having objected to it at the trial. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995). See also Wells v.State, 337 Ark. 586, 991 S.W.2d 114 (1999) (allowing appellant to attack an illegal sentence of probation at the time the trial court revoked the probation).

Sentencing is controlled by statute and shall be in accordance with the statute in effect at the time of the commission of the offense. Cody v. State, 326 Ark. 85, 929 S.W.2d 159 (1996). Arkansas Code Annotated section 5-4-205(a)(1) (Repl. 1993), which was in effect at the time of the commission of appellant's crime of theft of property by deception, provides, "A defendant who is found guilty or who enters a plea of guilty or nolo contendere may be ordered to pay restitution." Subsection (a)(2) of that section provides, "the sentencing authority . . . shall make a determination of actual economic loss caused to a victim by the crime."

In this case, the crime to which appellant pleaded guilty was theft of property by deception, not a violation of the hot-check law. However, the trial court, in addition to ordering restitution for the theft of property by deception, also ordered restitution for the hot checks on which the State nolle prossed any criminal charges. In accordance with subsection (a) of Ark. Code Ann. § 5-4-205, the only restitution that appellant could be ordered to make was with regard to the offense of theft of property by deception, the crime to which she pleaded guilty. The trial court had no authority to order that appellant make restitution on hot checks for which she had not pleaded guilty. See Fortson v. State, 66 Ark. App. 225, 989 S.W.2d 553 (1999).

Reversed and dismissed.

Pittman and Griffen, JJ., agree.