Gregory Thompson v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CACR01-641

DECEMBER 12, 2001

GREGORY THOMPSON AN APPEAL FROM THE GARLAND APPELLANT COUNTY CIRCUIT COURT

v. [CR94-270-I]

STATE OF ARKANSAS HONORABLE JOHN H. WRIGHT, APPELLEE CIRCUIT JUDGE

REVERSED AND DISMISSED

This appeal concerns the jurisdiction of a circuit court to modify the criminal sentence of appellant, Gregory Thompson, after the sentence had been placed into execution. We hold that the circuit court lacked jurisdiction over Thompson to modify his sentence, and we reverse and dismiss.

Appellant entered a negotiated plea agreement on August 8, 1994, wherein he pled guilty to the charge of possession of a controlled substance. As part of that agreement, appellant was placed on probation for a term of five years and was ordered to pay a $1,500 fine, $440 in court costs, $500 to the Garland County Indigent Defense Fund, and a supervision fee of $12.50 per month. The State filed a violation-of-probation report,alleging appellant violated the conditions of his probation because he had not shown proof of payment of fines and court costs since October of 1994, had not paid supervision fees since January of 1997, and had not reported since February of 1998. The State filed a petition to show cause, and subsequently, a plea agreement was reached. The trial court approved the plea agreement and extended appellant's probation from August 8, 1999, to August 8, 2001, holding that appellant had failed to report and to make necessary payments.

In June of 1999, the State filed another petition to revoke and an amended petition to revoke. The petitions listed numerous violations of the terms and conditions of appellant's probation. Again, a plea agreement was reached, and an order was entered on October 11, 1999, providing that appellant would be sentenced to thirty days in the Garland County Detention Center to be served two days per week. In December of 1999, yet another petition was filed to revoke appellant's probation, alleging appellant failed to serve any of his jail time. That petition was dismissed because the trial court found that appellant's probation had been improperly modified in the October 11, 1999, order.

On October 5, 2000, the State again filed a petition to revoke, based upon a violation report filed September 22, 2000. A hearing was held and appellant's probation revoked. Appellant was sentenced to six years in the Arkansas Department of Correction. From that decision, comes this appeal.

On appeal, appellant argues that (1) it was error to extend his probation; (2) the State did not prove its case by a preponderance of the evidence; and (3) the trial courterred in refusing to dismiss the petition to revoke filed October 5, 2000. The State concedes that the circuit court lacked jurisdiction to revoke appellant's probation.

Appellant challenges, for the first time on appeal, the circuit court's jurisdiction to revoke his probation. An appellant can raise his jurisdictional claim for the first time on appeal, as a 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 may be raised by the appellate court on its own motion. See Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); Baldwin v. State, 74 Ark. App. 69, 45 S.W.3d 412 (2001).

A trial court loses jurisdiction to modify or amend an original sentence once that sentence is put into execution. Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 ( 2001); Harmon, supra. The jurisdiction lost is referred to as subject-matter jurisdiction with respect to the defendant's sentence. Bagwell, supra. A plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment, constitutes a conviction, which deprives the circuit court of jurisdiction over the defendant to amend or modify a sentence after it has been placed into execution. Pike, supra; McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998).

Act 1569 of 1999, now codified at Ark. Code Ann. §§ 5-4-301, 5-4-303, and 5-4-306 (Supp. 1999), took effect on April 15, 1999, and empowers circuit courts to modify original sentences following revocation hearings. Bagwell, supra. It cannot, however, be applied retroactively to this case. Because the act was not in effect at the time of this case, the circuit court had no jurisdiction to modify its original sentence, which had been placed into execution. Consequently, we hold that the subsequent order of revocationand sentence now appealed from was void, and we reverse and dismiss.

Because we reverse on the issue of jurisdiction, we do not reach appellant's subsequent arguments.

Reversed and dismissed.

Stroud, C.J., and Hart, J., agree.