Kevin Terrance Arnold v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATON

TERRY CRABTREE, JUDGE

DIVISION III

KEVIN TERRANCE ARNOLD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-759

DECEMBER 19, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR-93-766, CR-95-45, CR-95-726, CR-97-204]

HONORABLE MARK HEWETT,

CIRCUIT JUDGE

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

The Sebastian County Circuit Court held a hearing on March 30, 2001, and found that the appellant, Kevin Terrance Arnold, had inexcusably violated the terms and conditions of his suspended sentences entered in four separate cases. On each petition, the trial court sentenced appellant to two years in the Arkansas Department of Correction with imposition of an additional sentence suspended for eight years, with all sentences to be served concurrently. On appeal, appellant presents two arguments: (1) the trial court erred by denying his motion to dismiss because the hearing was conducted outside of the sixty-day limitation contained in Ark. Code Ann. § 5-4-31(b)(2) (Repl. 1997); and (2) the trial court imposed an illegal sentence in one of his cases, Sebastian County No. CR 95-726. We affirm in part and reverse and remand in part for re-sentencing.

Appellant claims that the trial court erred by denying his motion to dismiss because

his hearing was conducted outside of the sixty-day limitation. A revocation hearing shall be conducted by the court that suspended imposition of sentence on the defendant or placed him on probation within a reasonable period of time, not to exceed sixty days, after the defendant's arrest. Ark. Code Ann. § 5-4-310(b)(2). The purpose of this rule is to insure that a defendant is not detained in jail for an unreasonable time while awaiting his revocation hearing. Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995). Because this requirement is not jurisdictional, it can be waived. See White v. State, 329 Ark. 487, 951 S.W.2d 556 (1997).

Before the hearing began on the petitions to revoke, appellant moved to dismiss, citing a violation of the sixty-day limitation. After hearing arguments of counsel, the trial court denied appellant's motion, ruling, "I'm going to find that he's waived that, because if he had appeared when he was scheduled, then we would have had a timely hearing. It's his action by not appearing that had caused any delay." We agree.

The record reveals that in three cases, Sebastian County Nos. CR 93-766, CR95-45, and CR 95-726, a hearing on the petitions to revoke was scheduled ten times. On six of those dates, appellant failed to appear, and on each date, the presiding judge ordered that a bench warrant for appellant's arrest be issued. In several instances, more than six months passed before appellant was arrested and brought back into court. On one occasion, it was apparently discovered that appellant was outside the State of Arkansas, and a governor's warrant had to be issued in order to bring him back. On the other four hearing dates, the record shows that he asked for and received continuances.

At the hearing on appellant's motion to dismiss, the parties agreed that appellant had been in jail for fifty-five days prior to the March 30, 2001 hearing on the petitions to revoke. The record shows that on January 17, 2001, appellant failed to appear for his revocation hearing, and the trial court ordered that a bench warrant be issued for his arrest. Appellant was arrested on February 9, 2001. Appellant argued that he had previously spent forty-five days in jail awaiting a revocation hearing, and together, the two periods exceeded the sixty-day limitation. Clearly, any delay in conducting appellant's revocation hearing was caused solely by appellant's own actions, and the trial court did not err by ruling that he waived the sixty-day limitation. See Holmes v. State, 33 Ark. App. 168, 803 S.W.2d 563 (1993).

For appellant's next point on appeal, he maintains that the trial court imposed an illegal sentence. Appellant is correct, and the State concedes that the case must be remanded to the trial court for re-sentencing. On August 9, 1995, appellant pled guilty to forgery in the second degree, a Class C felony, in Sebastian County CR 95-726, and was sentenced to one year in the Department of Correction, with imposition of additional sentence suspended for nine years. The State subsequently filed a petition to revoke the suspended imposition of an additional sentence, which the trial court granted on March 30, 2001. The trial court then sentenced appellant to two years in the Department of Correction, with imposition of additional sentence suspended for eight years. Appellant argues that the sentence imposed was illegal because it was in excess of the statutory range for a Class C felony, or ten years. See Ark. Code Ann. § 5-4-401(a)(4) (Repl. 1997).

Arkansas Code Annotated § 5-4-309(f)(1) (Supp. 1999) allows a trial court to revokea suspension or probation, enter a judgment of conviction, and impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty. However, it also mandates that the length of the imprisonment shall not exceed the statutory range of punishment for the offense when combined with any previous imprisonment imposed for the same offense. See Brimer v. State, 295 Ark. 20, 746 S.W.2d 370 (1988). In this case, the trial court's sentence effectively placed appellant under its jurisdiction for ten years. However, because he had already served one year's imprisonment, the longest that the trial court could retain jurisdiction was nine years. Accordingly, the sentence imposed in Sebastian County CR 95-726 should be reversed and remanded to the trial court for re-sentencing.

Affirmed in part, reversed and remanded in part.

Bird and Baker, JJ., agree.