Robert A. Peters v. State of Arkansas

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ar00-203

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

ROBERT A. PETERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-203

February 11, 2004

APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT

[NO. CR95-128]

HONORABLE HARVEY YATES,

CIRCUIT JUDGE

REVERSED AND REMANDED

Josephine Linker Hart, Judge

Appellant, Robert A. Peters, appeals from his sentence to twenty years' imprisonment following the circuit court's revocation of both appellant's probation and his suspended imposition of sentence. On appeal, he argues that the circuit court lacked subject-matter jurisdiction to revoke. The State concedes the point. Accordingly, we reverse and remand.

According to a judgment and disposition order filed October 1, 1996, appellant pleaded guilty to attempted delivery of a controlled substance on August 27, 1996. The "conditions of suspension" ordered by the circuit court and filed August 27, 1996, indicated that the court suspended imposition of sentence for five years with the suspension period ending on August 26, 2001, and that "[d]uring the term of this suspension," appellant would be on supervised probation for two years. The conditions also ordered appellant to "pay your fine and Court costs of $120.00 within sixty (60) days to the St. Francis County Sheriff's Office" and perform forty hours of community service unless he was gainfully employed.

The State filed a petition to revoke, and according to a judgment and disposition order filed April 1, 1998, appellant entered a negotiated plea of guilty on November 18, 1997. The

order indicated that the court revoked appellant's probation or suspended imposition of sentence, ordered him to serve a period of confinement for four months, extended the probationary period for twenty-four months to August 26, 2000, extended the period of the suspended imposition of sentence for sixty months to August 26, 2006, and ordered him to pay probation fees of $25 each month and perform forty hours of community service. The "extended" conditions of suspension ordered by the circuit court and filed on November 18, 1997, provided that the term of suspension would be five "additional" years to end on August 26, 2006, and that "[d]uring the term of the suspension," he would be on two "additional" years of supervised probation to end on August 26, 2000. These conditions further stated that appellant would serve 120 days in the county jail and perform forty hours of community service.

The State filed another petition for revocation, and the circuit court held a hearing on the petition. According to a judgment and commitment order filed November 19, 1998, the court revoked the probation or suspended imposition of sentence and sentenced appellant to twenty years' imprisonment.

The issue at hand is whether the circuit court lacked subject-matter jurisdiction to modify appellant's sentence as described in either the judgment and disposition order of April 1, 1998, or the judgment and commitment order of November 19, 1998. For offenses committed, as in the case at bar, prior to April 15, 1999, which was the effective date of Act 1569 of 1999, a circuit court lost subject-matter jurisdiction to modify or amend an original sentence once it was put into execution. Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003). A sentence is put into execution when the trial court issues a judgment of conviction or a commitment order, and a plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction, thereby depriving the circuit court of jurisdiction to amend or modify a sentence that has been executed. Id.

On appeal, appellant argues that the circuit court did not have subject-matter jurisdiction to modify his sentence as evidenced by the orders of April 1, 1998, and November 19, 1998. The State concedes error and explains that the circuit court lost jurisdiction because the sentence was put into execution in 1996 when the court suspended imposition of sentence for sixty months, ordered probation for twenty-four months, and ordered appellant to pay a fine. The State also notes that the circuit court imposed an illegal sentence by simultaneously ordering both probation and a suspended imposition of sentence.

We agree with the parties and reverse the court's orders modifying appellant's sentence. See Gavin v. State, ___ Ark. ___, ___ S.W.3d ___ (Oct. 16, 2003) (holding that a circuit court loses jurisdiction to modify or amend a sentence on revocation if appellant previously pleaded guilty, received a suspended imposition of sentence, and was fined). We also agree that, as in Gavin, the court imposed an illegal sentence by ordering both probation and a suspended imposition of sentence. Accordingly, as in Gavin, we instruct the circuit court on remand to modify appellant's original sentence so that it conforms with this opinion.

Reversed and remanded.

Stroud, C.J. and Gladwin, J., agree.