Walter Terry v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

WALTER TERRY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-897

DECEMBER 18,2002

APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. CR 94-364]

HONORABLE HARVEY LEE YATES,

JUDGE

AFFIRMED

On March 1, 2000, the Phillips County Circuit Court entered an order that revoked the suspended sentence of the appellant, Walter Terry. On appeal, he challenges the jurisdiction of the circuit court to do so. We affirm.

On March 13, 1995, appellant pleaded guilty to possession of marijuana with intent to deliver. As a result, the circuit court imposed a five-year suspended sentence on him and ordered him to pay a $300 fine and monthly probation fees. Among the conditions of his suspended sentence, appellant agreed to not possess a firearm or commit "an offense punishable by imprisonment." On August 11, 1999, the State filed a revocation petition and alleged that appellant had committed the crimes of terroristic act and first-degree battery; possessed a firearm; and failed to pay his fine and monthly probation fees. After conducting a hearing, the circuit court concluded that appellant had inexcusably failed to comply with

the terms of his suspended sentence, revoked it, and sentenced him to ten years' imprisonment in the Arkansas Department of Correction.

Appellant sought to appeal the trial court's revocation of his suspended sentence. Originally, appellant's counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court and Court of Appeals Rule 4-3(j) (2001). We reviewed the matter and issued an unpublished opinion, Terry v. State, CACR 00-897, slip op. at xiii (Ark. App. March 6, 2002), wherein we ordered appellant's counsel to rebrief the case and discuss whether the trial court had jurisdiction to revoke appellant's suspended sentence. This is the issue before us now.

Appellant did not challenge the circuit court's jurisdiction during his revocation hearing. Nonetheless, the issue of a circuit court's jurisdiction to modify a sentence can be raised for the first time on appeal. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001). Once a valid sentence is put into execution, we look to Act 1569 of 1999 to determine whether a court has jurisdiction to modify or amend an original sentence. Act 1569, which became effective on April 15, 1999, gave circuit courts the authority to modify original sentences following revocation hearings.

Here, however, we need not reference Act 1569 to determine whether the circuit court had jurisdiction over this matter because the circuit court did not amend or modify appellant's sentence. Rather, the trial court revoked appellant's suspended sentence. As a consequence of appellant's guilty plea, the circuit court entered a judgment and disposition order against appellant that suspended his sentence for five years and fined him $300. Afterappellant's suspended sentence and fine were put into execution, the trial court lost jurisdiction to modify the sentence. See Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). The trial court did not lose jurisdiction to revoke appellant's suspended sentence. Id; Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002).

Affirmed.

Vaught and Roaf, JJ., agree.