William Sharp v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

WILLIAM SHARP

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-219

December 15, 2004

APPEAL FROM THE JOHNSON COUNTY CIRCUIT COURT

[NOS. CR-97-124, CR-97-142]

HON. JOHN S. PATTERSON,

JUDGE

REVERSED AND REMANDED

John Mauzy Pittman, Judge

The appellant pled guilty in August 1998 to three counts of violating the Arkansas Hot Check Law. He was fined $1,000 and placed on probation for a period of five years. One of the conditions of appellant's probation was that he not commit any offense punishable by imprisonment. On May 3, 2002, the State filed a petition to revoke appellant's probation alleging, inter alia, that he had committed an offense punishable by imprisonment by using a controlled substance. After a hearing, the trial court found that appellant violated the conditions of his probation and sentenced him to two concurrent twenty-four-month terms of imprisonment for violation of the Arkansas Hot Check Law, to be followed by forty-eight months' suspended imposition of sentence as to an additional term of imprisonment. On appeal, appellant contends that the trial court lacked jurisdiction to impose additional periods of suspension on revocation for appellant's original crimes, the violations of the Arkansas Hot Check Law. We agree, and we reverse.

In Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003), the Arkansas Supreme Court held that where the original offense had been committed prior to the effective date of Act 1569 of 1999 (April 15, 1999), and where, following a guilty plea, Gates's original sentence to a fine and probation had been placed into execution by issuance of a judgment of conviction or a commitment order, the trial court lacked subject-matter jurisdiction to impose an additional suspended sentence on revocation of probation.1

In the present case, appellant's original offense was committed prior to April 15, 1999; appellant pled guilty and was sentenced to a fine and probation, which sentence was executed by the entry of a judgment and disposition order; and, upon revocation, the trial court imposed a sentence to a term of years plus an additional forty-eight months' suspended imposition of sentence. Under the holding in Gates, supra, the trial court lacked jurisdiction to suspend imposition of sentence to the additional term of imprisonment.

A trial court has jurisdiction to correct an illegal sentence even if it has been placed into execution. Thronebury v. State, ___ Ark. App. ___, ___ S.W.3d ___ (March 10, 2004). Accordingly, we reverse the order modifying appellant's sentence, and remand this case with instructions to the trial court to correct the illegal sentence imposed on appellant following the revocation of his probation.

Reversed and remanded.

Hart and Vaught, JJ., agree.

1 Act 1569 of 1999 amended Ark. Code Ann. § 5-4-301(d) to permit modifications to probated sentences that are placed into execution. See Thronebury v. State, ___ Ark. App. ___, ___ S.W.3d ___ (March 10, 2004).