Jimmy Mills v. State of Arkansas

Annotate this Case
ar03-393

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

JIMMY MILLS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-393

FEBRUARY 11, 2004

APPEAL FROM THE ST. FRANCIS

COUNTY CIRCUIT COURT

[NO. CR-92-282, CR-98-209]

HONORABLE HARVEY LEE YATES,

JUDGE

REVERSED AND DISMISSED IN

CR92-282; APPEAL DISMISSED IN

CR98-209

John B. Robbins, Judge

Appellant Jimmy Mills appeals two revocations as entered by the St. Francis County Circuit Court. The State concedes that in the first revocation concerning CR92-282, the trial court illegally sentenced appellant after the expiration of his period of suspension, and we reverse and dismiss that revocation and resulting judgment. In the other revocation, case number CR98-209, we dismiss the appeal because appellant failed to bring up a judgment in the record for us to review. We discuss each revocation proceeding individually as follows.

CR92-282

On November 8, 1993, appellant pleaded guilty to first-degree battery in St. Francis County Circuit Court case number CR92-282 and was given five years of suspended imposition of sentence, which would end on November 8, 1998. The State filed a petition to revoke that suspension within five years, but the trial court did not enter a judgment on that petition until November 25, 1998, extending his suspended imposition of sentence another five years. Appellant later moved to dismiss the revocation as an illegal sentence, his suspension period

having expired prior to revocation, but his motion was denied. Appellant appealed from that denial, and the State concedes that error occurred. We agree that the sentence entered by the circuit court was illegal, which can be raised at any time, Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003), and we reverse and dismiss the sentence upon revocation in CR92-282.

To explain further, a plea of guilty, coupled with a fine and probation or suspension, constitutes a conviction. Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). It is well settled that a trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is executed.1 See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001); Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). Thus, the issue of whether a circuit court can revoke a suspension after the expiration of the suspension period is one of jurisdiction. See Gavin v. State, __ Ark. __, __ S.W.3d __ (October 16, 2003).

Suspension is governed by section 5-4-309 of the Arkansas Criminal Code that provides in pertinent part as follows:

(a) At any time before the expiration of a period of suspension or probation, the court may summon the defendant to appear before it or may issue a warrant for his arrest. The warrant may be executed by any law enforcement officer.

. . . .

(d) If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.

(e) The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violation of suspension or probation, before expiration of the period.

Ark. Code Ann. § 5-4-309 (Supp. 2001). Prior to adoption of the current criminal code, our case law had only required that the petition to revoke be filed prior to the expiration of the suspension period. Parkerson v. State, 230 Ark. 118, 321 S.W.2d 207 (1959). The Commentary to section 5-4-309(e) indicates the Arkansas Criminal Code Revision Commission sought to replace the common law exceptions extending jurisdiction with specific statutory exceptions. Carter v. State, 350 Ark. 229, 85 S.W.3d 914 (2002). Under the plain language of section 5-4-309(e), revocation of suspension subsequent to the expiration of the suspension period is only authorized upon an arrest for violation of suspension or when "a warrant is issued for his arrest for violation of ... suspension" during the suspension period. See id.

When the five-year suspended imposition of sentence expired on November 8, 1998, without appellant having been arrested for a violation of a condition of his suspension and without an arrest warrant having been issued for such a violation, the circuit court lost jurisdiction to revoke under Ark. Code Ann. § 5-4-309(e). Because we hold that the circuit court lacked jurisdiction to revoke, we must reverse and dismiss as to CR92-282.

CR98-209

Appellant pleaded guilty on November 25, 1998, to the crime of possession of a controlled substance with intent to deliver. The trial court suspended imposition of sentence for five years, conditioned upon appellant spending 120 days in the St. Francis County jail, noting that the five-year suspension was to commence upon his release from the Arkansas Department of Correction, where he was being held on another crime. The State filed a petition to revoke in CR98-209 on February 5, 2002, specifically alleging that appellant had committed capital murder on December 28, 2001. The State filed an amended petition to revoke on June25, 2002, adding as violations an attempted murder, attempted rape, and residential burglary in Forrest City committed on April 30, 1999. At the State's request, on November 6, 2002, the trial judge entered an order to transport appellant from the Phillips County jail to court for the revocation hearing set for November 12, 2002. On November 7, 2002, the State filed a second amended petition to revoke, adding as a violation that appellant committed three counts of capital murder on December 7, 2001. The revocation hearing was conducted on November 12, 2002. The evidence taken at the revocation hearing produced proof supporting appellant's involvement in the various crimes alleged in the petition to revoke.

Appellant contended to the trial court at the conclusion of the revocation hearing that in case number CR98-209, the State did not prove that he was at liberty from incarceration from the Arkansas Department of Correction to set the five-year period of suspension in motion, and thus the State could not prove a violation of those conditions. The State responded that the evidence presented at the hearing regarding the multiple alleged crimes and arrests in Forrest City spoke for itself. The trial judge agreed with the State, and appellant appealed.

The State first asserts that we should not consider his argument on appeal because the record is devoid of any order filed of record to indicate that his suspension in CR98-209 was revoked. The State acknowledges that the hearing in which the trial judge revoked appellant's suspension in CR98-209 is abstracted and brought up in the record, but it contends that any revocation would be ineffective until entered of record, citing to Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003). The State contends that without the judgment, he cannot appeal because he failed to produce a record demonstrating error. Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999). We agree with the State.

The only judgment and commitment order in the record is the one in CR92-282, filed of record on December 16, 2002. In that order, it notes that the sentence purportedly to be served in that revocation would be consecutive to the sentence ordered upon revocation in CR98-209. The notice of appeal identifies that he is appealing the judgment entered on December 16, 2002, and has on it both case numbers in the caption. However, the appellate court does not consider on appeal matters outside of the record. See Burkhalter v. State, 330 Ark. 684, 956 S.W.2d 171 (1997). There is no judgment in case number CR98-209 for us to review, and we dismiss that appeal.

If we were to consider the merits of his argument, we would affirm. Harness v. State, 352 Ark. 335, 101 S.W.3d 235 (2003), holds that a circuit court does not have the power to revoke a suspended sentence prior to the commencement of the suspension period, overruling Venable v. State, 27 Ark. App. 289, 770 S.W.2d 170 (1989), and all other court of appeals decisions in conflict with Harness. No error occurred in this instance because appellant was at liberty from the Arkansas Department of Correction when the alleged violations occurred subsequent to November 1998. It is undisputed that appellant was at some point in the custody of the county for the newer offenses, hence the order to bring him from the county jail to court for the revocation hearing. There is no other conclusion to be drawn.

Reversed and dismissed on case number CR92-282.

Appeal dismissed on case number CR98-209.

Baker and Roaf, JJ., agree.

1 The holdings in Bagwell, Pike, McGhee, and Harmon, that a court loses jurisdiction to modify a sentence during a period of probation, have been superceded by Act 1569 of 1999, codified at Ark. Code Ann. § 5-4-301(d) (Supp. 2001). See Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002). In the instant case, however, we are concerned with whether a circuit court loses jurisdiction to revoke a suspended imposition of sentence after the expiration of the suspension period.