Donna Sue Aldridge v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

DONNA SUE ALDRIDGE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-971

January 21, 2004

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR 96-301]

HON. FLOYD G. ROGERS,

JUDGE

REVERSED AND DISMISSED

Robert J. Gladwin, Judge

Appellant's counsel initially filed a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j) (2003), along with a motion to withdraw as attorney of record. In an unpublished opinion, Aldridge v. State, CACR02-971 (June 25, 2003), this court denied counsel's motion and remanded for rebriefing, instructing counsel to consider certain jurisdictional issues with regard to the revocation of appellant's suspended sentence in CR 96-301. Counsel has now elected to submit a merit brief, arguing that the trial court lacked jurisdiction to revoke appellant's suspended imposition of sentence from CR 96-301.1 We reverse and dismiss.

On November 4, 1996, in the Crawford County Circuit Court, Donna Sue Aldridge entered a plea of nolo contendere to overdraft in CR 96-301, which offense was committed on August 23, 1996. She received three years' suspended imposition of sentence, one condition of which was that she report to a probation officer for twelve months, and was ordered to pay a fine, costs, and $617.39 in restitution.

The State filed a petition to revoke appellant's suspended sentence in CR 96-301 on December 9, 1998, alleging that she had failed to make a payment toward her restitution, leaving a balance of $475.50, and had failed to make any payment whatsoever toward her fine and costs. Following a hearing on the State's petition held on March 27, 2000, the trial court ordered appellant to serve six months in the Crawford County Detention Center and to pay $475.50, representing the remaining amount of restitution. Ostensibly, the trial court did not revoke appellant's suspended sentence.

On May 6, 2002, the State filed a petition to show cause why appellant had violated the court's orders, alleging that she had failed to make any payment toward restitution since May 7, 1997, leaving a balance of $475.50. Following a hearing on July 17, 2002, the trial court revoked appellant's suspended sentences in both CR 96-301. Appellant was ordered to serve two years in the regional punishment facility for failing to pay restitution in CR 96-301.

In Aldridge, supra, we agreed with appellant's counsel that there was no merit with regard to a challenge to the sufficiency of the evidence. The State met its burden of proving by a preponderance of the evidence that appellant's failure to pay restitution was inexcusable, and appellant failed to go forward with any evidence to rebut the evidence put forth by the State. Thus, this appeal concerns only the issue of whether the trial court had jurisdiction to revoke appellant's suspended sentence in CR 96-301 following the hearing on July 17, 2002. As a preliminary matter, in our earlier opinion, Aldridge, supra, we agreed with the contention that appellant received an illegal sentence in CR 96-301 because she was sentenced to both probation and a suspended imposition of sentence. See Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003) (a court may not impose probation and a suspended sentence simultaneously). That, however, does not end the inquiry. The remedy for an illegal sentence is not dismissal of all related proceedings in the trial court or dismissal of the State's petition to revoke but rather, the sentencing court may correct the illegal sentence. See Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992).

A plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction. See Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003). In Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), our supreme court held that a trial court loses jurisdiction to modify a sentence once it has been placed into execution. See also Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). Act 1569 of 1999 amended Ark. Code Ann. § 5-4-301(d) so as not to preclude a trial court from modifying its original sentence. However, the Act does not apply retroactively to offenses committed prior to April 15, 1999, the effective date of the Act. Gates, supra. Here, appellant committed the offense in CR 96-301 on August 23, 1996. Therefore, the Act does not apply to appellant's sentence and, instead, Harmon and its progeny govern.

Appellant argues that the trial court lacked jurisdiction to revoke her suspended sentence in 2002 because such action would amount to a modification of her original sentence and because the State's petition was filed after the period of suspension had expired. We conclude that the trial court's action in 2000 was tantamount to a revocation of CR 96-301 because it would otherwise be an impermissible modification of appellant's original sentence. As a result, the trial court lacked jurisdiction to subsequently revoke appellant's suspended imposition of sentence in 2002 because the trial court could not revoke her sentence a second time. See McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998).

In its brief, the State is mindful of the holding in McGhee, supra, but points out that it filed a petition to show cause and did not seek to revoke appellant's suspended sentence. Nevertheless, the trial court clearly attempted to revoke appellant's suspended imposition of sentence a second time in 2002, and it lacked subject-matter jurisdiction to take that course of action. The State insists that the trial court retained jurisdiction over appellant pursuant to Ark. Code Ann. § 5-4-303(f) (Repl. 1993),2 which provides:

If the court has suspended the imposition of sentence or placed a defendant on

probation conditioned upon his making restitution or reparation and the defendant

has not satisfactorily made all his payments when the probation period has ended, the

court shall have the authority to continue to assert its jurisdiction over the recalcitrant

defendant and extend the probation period as it deems necessary or revoke the

appellant's suspended sentence.

In addition, the State relies on Kyle v. State, 312 Ark. 274, 849 S.W.2d 935 (1993), where our supreme court held that the trial court inherently retains jurisdiction over a defendant who has been ordered to pay restitution as a condition of a deferred imposition of sentence until the full amount of restitution is paid, even if the term of deferment has expired. That case, however, is distinguishable. Annette Kyle (Bohlman) entered a plea of nolo contendere to leaving the scene of a personal injury accident, and the trial court withheld imposition of sentence for five years, with one of the conditions being that she pay $5,789.70 in restitution. Although the State filed three separate petitions to revoke in the following years, the trial court never at any time revoked Kyle's probation period. Instead, following a hearing on the third petition, the trial court extended Kyle's probation period until she paid the restitution in full, in spite of the fact that Kyle's deferred sentence had expired.

The State relies on a second case, Smith v. State, ___ Ark. App. ___, 115 S.W.3d 820 (2003), interpreting Kyle, supra. Smith pleaded guilty to four counts of residential burglary and four counts of theft of property, and on June 6, 1995, the trial court sentenced him to five years' probation and ordered him to pay a fine, costs, and restitution. In January 1997, the State filed a petition to revoke, alleging that Smith had failed to make any payments toward restitution. On March 11, 1997, the trial court found that Smith had violated the conditions of his probation, but the trial court chose to merely continue him on probation. In addition, the trial court set the case for a compliance review on June 10, 1997, which the court deemed to be a revocation hearing. Smith failed to appear several times thereafter and was granted a continuance on two occasions. A revocation hearing was finally held on July 9, 2002. The trial court revoked Smith's probation and sentenced him to six years' imprisonment. On appeal, Smith argued that the trial court lacked jurisdiction to revoke his probation because he was neither arrested nor was a warrant issued for his arrest prior to the expiration of his probation period in 2000, citing Ark. Code Ann. § 5-4-309(e). This court held that, because Smith was ordered to pay restitution, the trial court retained jurisdiction over him pursuant to Ark. Code Ann. § 5-4-303(h)(2), which was adopted after Ark. Code Ann. § 5-4-309(e). That case is distinguishable in that the action the trial court took in 1997 did not amount to an extension or a revocation but was simply a continuation of his probation, so that the trial court could then revoke it in 2002. In other words, the trial court in Smith did not attempt to revoke Smith's probation twice, as in the case at bar.

Here, the trial court's action in 2000 amounted to a revocation, and McGhee, supra, which was decided after Kyle, prohibited a second revocation in 2002. We understand the language of Ark. Code Ann. § 5-4-303(h)(2), in light of McGhee, supra, to mean that, when restitution is a condition of a defendant's probation or suspended imposition of sentence, the trial court may take action--specifically, it may extend or revoke--even after the period of probation or suspension has ended, but the trial court cannot revoke more than once, whether the revocation takes place within the period of probation or suspension or after that period has expired.

Reversed and dismissed.

Griffen and Roaf, JJ., agree.

1 On May 3, 2000, appellant pleaded nolo contendere to overdraft in CR 2000-89 and received five years' suspended imposition of sentence. At the same time that the trial court subsequently revoked appellant's suspended sentence in CR 2000-89, it also purported to revoke as to CR 96-301. Although counsel addressed the CR 2000-89 revocation in his previous no-merit brief, it is not an issue in this appeal. Counsel conceded that the trial court had jurisdiction to revoke in CR 2000-89.

2 Currently located at Ark. Code Ann. § 5-4-303(h)(2) (Supp. 2003).