Charles Lovell v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

CHARLES LOVELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-726

March 12, 2003

APPEAL FROM THE ARKANSAS

COUNTY CIRCUIT COURT

[CR-94-183, CR-94-184]

HONORABLE F. RUSSELL ROGERS,

CIRCUIT JUDGE

REVERSED AND DISMISSED

Appellant, Charles Lovell, pleaded guilty to the charges of possession of drug paraphernalia and hot checks on August 17, 1994. Pursuant to these pleas, he was placed on probation for a period of four years under Act 346 of 1975. The State filed a petition to revoke appellant's probation on June 24, 1997; in October of 1997, in appellant's absence and upon the belief that appellant had absconded from the area, the circuit judge revoked appellant's probation and sentenced him to twenty years in the Arkansas Department of Correction. However, appellant was apparently incarcerated in the State of Georgia at that time. In December 2000, upon the joint motion of the State and the appellant, the circuit judge set aside the October 1997 order, holding that it was null and void; in that same order, the circuit judge reinstated appellant's probation for a period of two years.

The State filed another petition to revoke appellant's probation on July 9, 2001. After a hearing on the petition, the trial court revoked appellant's probation on February 25, 2002, and sentenced appellant to two years in the Arkansas Department of Correction. Appellant now appeals, arguing (1) that the trial court erred in reinstating his probation in December 2000 because his probationary period had already run; and (2) that he was denied the right to confront witnesses at his February 2002 revocation hearing. The State concedes error on the first point. We agree; therefore, we reverse and dismiss.

Arkansas Code Annotated section 16-89-103(a)(2)(B) (Supp. 2002) requires that if an indictment is for a felony, "judgment shall not be rendered until the presence of the defendant is obtained." The two underlying offenses of appellant's probation were felonies, and when appellant's probation was revoked in 1997 and a twenty-year sentence was imposed, judgment was rendered in the absence of appellant in violation of Ark. Code Ann. § 16-89-103(a)(2)(B). For this reason, the 1997 order was void.

Because the October 1997 order was void, appellant's probationary period continued to run, and the four years were complete on August 17, 1998. Revocation of probation subsequent to the expiration of the probationary period is only authorized upon an arrest for violation of probation or when a warrant is issued for arrest based upon a violation of probation during the probation period. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002) (emphasis added). Therefore, because appellant's probation ended in 1998 and an arrest was not made nor a warrant issued for violation of probation prior to the expiration of appellant's probation, the trial court had no jurisdiction to revoke appellant's probation and sentence him to two years in the Department of Correction.

Reversed and dismissed.

Neal and Vaught, JJ., agree.