Troy Hood v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR02-393

JANUARY 15, 2003

TROY HOOD AN APPEAL FROM THE JOHNSON APPELLANT COUNTY CIRCUIT COURT

v. [CR95-7]

STATE OF ARKANSAS HONORABLE JOHN S. PATTERSON, APPELLEE JUDGE

REVERSED and DISMISSED

In April of 1995, Troy Hood entered a plea of guilty to the offenses of commercial burglary and theft of property in the Johnson County Circuit Court. He received five years' probation and was ordered to pay restitution, a fine, and costs. In addition to other terms and conditions of probation, appellant was ordered to submit to random drug testing, obtain a high school degree or its equivalent, and perform forty hours of public service. In December of 1998, the State filed a petition to revoke appellant's probation. Following the hearing, appellant's probation was extended an additional four years. On July 7, 1999, the State filed another petition to revoke appellant's probation. The trial court did not revoke appellant's probation, but ordered appellant to adhere to additional terms and conditions. Finally, inOctober of 2001, the State filed a petition to revoke, alleging that appellant had failed to report, failed to pay probation fees, and tested positive for the use of marijuana in April and June of 2000 and September of 2001. Following the revocation hearing, the trial court did not revoke appellant's probation but added an additional condition of probation that appellant serve 120 days in a regional correctional facility for violating the terms and conditions of his probation.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Mr. Hood's counsel has filed a motion to withdraw on the grounds that the appeal of this case is without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Mr. Hood was provided with a copy of his counsel's brief and notified of his right to file a list of points for reversal within thirty days. He filed no points.

In his brief, appellant's counsel addresses two adverse rulings. The first is the denial of a motion for a continuance. When reviewing the grant or denial of a motion for continuance, we employ an abuse-of-discretion standard; an appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but must also show prejudice that amounts to a denial of justice. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). When a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances. Id.

Prior to the commencement of the revocation hearing, appellant requested a continuance, arguing that he had not had a meaningful opportunity to meet with counsel and prepare for the hearing. This was due, in part, to the fact that appellant had been arrested on November 11, 2001, on the State's petition to revoke, and taken into custody at the Pope County Detention Center; appellant was then transported to the Johnson County Detention Center on November 21, 2001, and he bonded out of jail only to be arrested again on December 30, 2001, in Pope County on the charge of fraudulent use of a credit card. Appellant was released on bond on January 7, 2002, four days prior to his probation revocation hearing.

The trial court inquired of the State whether or not it would prove the charge of fraudulent use of a credit card as a basis for revoking appellant's probation. The State indicated that it was not pursuing the new criminal conduct and would proceed on the allegations of failure to report, failure to pay fees, and the positive test for marijuana. As a result, the trial court found that this matter, based on the alleged condition violations, would not take a great deal of witness preparation. The court further determined that, since the new criminal conduct would not be pursued as a basis for probation revocation, the motion for a continuance would be denied. Considering the totality of the circumstances, we find no abuse of discretion.

The second adverse ruling was the trial court's disposition of the case, which did not involve the revocation of appellant's probation, but included an additional condition that appellant serve 120 days in a regional correctional facility. Appellant did not raise the issueof jurisdiction either in the circuit court or on appeal; however, a circuit court's loss of jurisdiction to modify a sentence can be raised by this court on its own motion. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001). We do so in this instance and conclude that the trial court lacked jurisdiction to modify appellant's sentence; therefore, we reverse and dismiss.

Act 1569 of 1999, which was effective as of April 15, 1999, amended Ark. Code Ann. § 5-4-301(d) to empower circuit courts to modify original sentences following revocation hearings. Bagwell v. State, supra. The act did not contain a clause stating that it would take effect retroactively. Bagwell v. State, supra. Therefore, unless Act 1569 was in effect at the time the underlying offense was committed, a trial court loses jurisdiction to modify or amend an original sentence once that sentence is put into execution. Bagwell v. State, supra; see also Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002); Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001).

We hold that because Act 1569 of 1999 was not in effect at the time these crimes were committed, the circuit court lacked jurisdiction to modify its original sentence, which had been executed. See Climer v. State, ___ Ark. App. ___, ___ S.W.3d ___ (January 15, 2003). Counsel's motion to be relieved is granted and the judgment is reversed and dismissed.

Stroud, C.J., and Baker, J., agree.