Linda Taylor v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

LINDA TAYLOR

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-292

November 19, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR2002-143]

HONORABLE DAVID BOGARD,

JUDGE

AFFIRMED AS MODIFIED

Terry Crabtree, Judge

The appellant, Linda Taylor, was found guilty in a jury trial of theft of property, a class B felony, based on evidence that she embezzled money from her employer, Paul Morell Formalwear. As her only issue on appeal, she contends that the trial court imposed an illegal sentence when it altered the sentence fixed by the jury. The State concedes error, and we agree that the trial court lacked the authority to increase the sentence set by the jury.

As stated, appellant was charged with theft of property as a class B felony. At the sentencing phase of trial, the jury was instructed that it could sentence appellant to a term of not less than five years nor more than twenty years in prison, or a fine not to exceed $15,000, or both imprisonment and a fine. See Ark. Code Ann. §§ 5-4-104 (Supp. 2003), 5-4-401 (Repl. 1997); 5-4-201 (Repl. 1997). The jury was not given an instruction allowing it to recommend probation as authorized pursuant to Ark. Code Ann. § 16-97-101 (4) (Supp. 2001). Nor was the question of restitution submitted to the jury for its consideration. See Ark. Code Ann. §5-4-205 (Supp. 2003). The jury returned a verdict setting

appellant's sentence at a $10,000 fine.

The State thereafter filed a "Motion to Reconsider Sentence." In this motion, the State asked the trial court to amend the $10,000 fine fixed by the jury to $10,000 in restitution payable to Paul Morrell Formalwear. The State also requested the court to place the appellant on probation so that the payment of restitution could be monitored.1 Following the sentencing hearing, the court granted the State's motion by an order dated August 14, 2002, in which the court transformed the $10,000 fine into the payment of restitution and placed appellant on probation for six years. Appellant was also ordered to pay the restitution in the amount of $170 a month as a condition of probation. This order was incorporated into the judgment and commitment order of August 18, 2002. This appeal followed.

Although the appellant raised an objection to being placed on probation, she did not argue, as she does now, that the trial court did not have the authority to alter the sentence fixed by the jury. Her failure to preserve this argument does not preclude her from raising it on appeal, however, because we treat an allegation of an illegal sentence as a problem of subject-matter jurisdiction that we may review whether or not an objection was made in the trial court. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996). An illegal sentence is one that is illegal on its face. Timmons v. State, 81 Ark. App. 219, 100 S.W.3d 52 (2003). A sentence is illegal on its face when the trial court lacks the statutory authority to impose it. See Lawhon v. State, 328 Ark. 335, 942 S.W.2d 864 (1997); Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).

Sentencing in Arkansas is entirely a matter of statute. Brown v. State, ___ Ark. App. ___, 110 S.W.3d 293 (2003). Arkansas Code Annotated section 5-4-103(a) (Repl. 1997) provides that, if a defendant is found guilty of a felony offense by a jury, the jury shall fix punishment in a separate proceeding. The statute permits a trial judge to fix a defendant's sentence only in five circumstances, none of which are applicable here. Johnson v. State, 328 Ark. 526, 944 S.W.2d 115 (1997). A trial judge does have the statutory authority to reduce a sentence if, in the trial judge's opinion, the jury's sentence was too harsh under the circumstances of the case. Ark. Code Ann. 16-90-107(e) (1987). However, no statutory authority exists for a trial judge to increase the punishment fixed by the jury. Richards v State, 309 Ark. 133, 827 S.W.2d 155 (1992); Brown v. State, supra. In this case, the jury fixed appellant's punishment at a $10,000 fine. Therefore, the trial court erred by increasing that sentence to add a term of probation.

We also know of no statutory authority that would permit the court to transform the fine set by the jury into an order of restitution. Although Arkansas Code Annotated section 16-90-307 (Repl. 1997) empowers a trial judge to levy additional fines against criminal defendants to be placed in a restitution fund, we do not take this to mean that a trial judge may convert a jury-imposed fine into restitution. In the absence of any statutory authority, we conclude that the trial court also erred in this regard.

Where the trial court's error has nothing to do with the issue of culpability and relates only to punishment, we may correct the error in lieu of reversing and remanding the case. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). Therefore, we reinstate the jury's sentence of a $10,000 fine.

Affirmed as modified.

Griffen and Neal, JJ., agree.

1 The procedures for monitoring the payment of fines are found at Ark. Code Ann. § 5-4-202 (Repl. 1997) and Ark. Code Ann. § 5-4-203 (Supp. 2003).