Michael F. Carter v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION II

MICHAEL F. CARTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-533

April 2, 2003

APPEAL FROM THE BENTON COUNTY CIRCUIT COURT

[NO. CR-94-266-2]

HON. TOM KEITH,

JUDGE

REVERSED and DISMISSED

Appellant, Michael F. Carter, pled guilty on October 24, 1994, to delivery of a controlled substance, a Class C felony. The trial court entered an order of probation under Act 346 of 1975, deferring appellant's plea and placing him on five years' probation. The trial court also ordered appellant to pay $1000 as restitution to the county, $227.25 in court costs, $250 to the public defender, and $500 to the Siloam Springs drug fund. He was sentenced to serve two days in the county jail with two days' credit for time served.

On February 20, 1997, the State filed a petition to revoke appellant's probation alleging that he had: 1) failed to pay fines, fees, and costs as ordered; 2) failed to report to his probation officer as ordered; 3) failed to report a change of address to his probation officer; and 4) used an illegal drug, marijuana, continuously while on probation.

On April 4, 1997, the trial court held a hearing on the State's petition to revoke. Appellant admitted that he had failed to pay his fines, costs, and fees and that he had used marijuana. In addition to finding that appellant had committed the violations admitted by him, the court also found that appellant had failed to report his change of address. Thus, the court revoked appellant's Act 346 status, sentenced him to 120 days in the Department of Community Punishment, extended his probation an additional 12 months, ordered him to pay fines, costs, and restitution in the amount of $1487.25, and ordered him to complete the "Choices" treatment program.

On October 16, 2000, the State filed another petition to revoke alleging that appellant had admitted to the use of methamphetamine, had tested positive for the same, and had failed to complete treatment as recommended. This petition was amended on June 22, 2001, alleging that appellant had failed to report to his probation officer and had admitted to the use of methamphetamine.

Appellant moved to dismiss the petition, contending that the trial court lost subject matter jurisdiction when it revoked his Act 346 status and accepted his guilty plea on April 4, 1997. At a hearing on August 13, 2001, the trial court denied appellant's motion to dismiss. Appellant then admitted the violations. The court found him in violation and sentenced him to 36 months in the Department of Correction and ordered drug treatment. The court gave appellant credit for 170 days' confinement. In appealing from this order, appellant argues that the trial court erred in denying his motion to dismiss the June 2001petition to revoke his probation because the court lost subject matter jurisdiction when it revoked his Act 346 status.

This case is governed by the sentencing law in effect prior to the passage of Act 1569 of 1999 because appellant was charged and placed on probation in 1994. Act 1569 of 1999 changed statutes governing a trial court's authority to modify or amend the terms and conditions of a defendant's probation. The Arkansas Supreme Court has declined to apply that Act retroactively, therefore, the prior case law on the subject controls. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001).

A trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is put into execution. McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). A plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). The State argues that the trial court never lost jurisdiction because it never imposed a fine and, therefore, Pike should not control.

The trial judge ordered appellant to pay "$1000 Benton county restitution in lieu of a fine." On nearly identical facts, our supreme court recently held that restitution in "lieu of a fine" constituted a fine, and that the plea of guilty, coupled with a fine and probation, constitues a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. Clampet v. State, 352 Ark. ___, ___ S.W.3d ___ (March 6, 2003). The supreme court concluded that because a valid sentence had been put intoexecution at the first revocation hearing, the circuit court was without jurisdiction to later amend or modify the sentence, and thus erred in denying Clampet's motion to dismiss the petition to revoke probation. Id.

As in the holding in Clampet, appellant's guilty plea at the first revocation hearing coupled with imposition of a fine and probation constituted a conviction, thereby depriving the circuit court of jurisdiction to amend or modify at the second revocation hearing a sentence that had been executed. Accordingly, we find that the trial court lacked jurisdiction to modify appellant's sentence following the April 4, 1997, hearing, and thus erred in denying appellant's motion to dismiss the State's petition to revoke his probation.

Reversed and dismissed.

Neal and Roaf, jj., agree.