Nelson Nimmer v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION II

NELSON NIMMER

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR03-576

JANUARY 7, 2004

APPEAL FROM THE DESHA COUNTY CIRCUIT COURT

[CR98-58-4]

HONORABLE DON EDWARD GLOVER, CIRCUIT JUDGE

REVERSED AND REMANDED

Karen R. Baker, Judge

Appellant, Nelson Nimmer, appeals the Desha County Circuit Court's denial of his motion for a continuance. His sole argument on appeal is that the trial court erred in denying his motion to continue his revocation hearing. However, because the trial court's order of sentencing following the revocation of appellant's probation was illegal, we reverse and remand.

On October 14, 1998, following appellant's entry of a guilty plea, appellant was convicted of delivery of cocaine and was sentenced to four years' imprisonment and six years' suspended imposition of sentence. On January 8, 2003, the State filed a petition to revoke appellant's suspended imposition of sentence asserting that appellant had committed an offense punishable by imprisonment by attacking a woman and inflicting injuries upon her that resulted in permanent disfigurement. The trial court held a hearing on the petition to revoke on April 2, 2003, and granted the State's petition to revoke appellant's sentence. The trial court sentenced appellant to fifteen years' imprisonment in the Arkansas Department of Correction and a fifteen year suspended imposition of sentence. From this order, comes this appeal.

We are not precluded from considering the issue of the trial court's jurisdiction to modify

appellant's sentence, despite the fact that the parties have not raised the issue. Gavin v. State, ___ Ark.___, ___ S.W.3d ___ (October 16, 2003). Although not raised by appellant, either in the trial court or in this court on appeal, the trial court, following the revocation, subsequently modified his suspended imposition of sentence. Our supreme court has said that we will treat allegations of void or illegal sentences similar to the way that we treat problems of subject-matter jurisdiction. See Flowers v. State, 347 Ark. 760, 68 S.W.3d 289 (2002); see also Renshaw v. State, 337 Ark. 494, 989 S.W.2d 515 (1999). In Gavin, supra, our supreme court stated that:

As a threshold matter, we note that we are not precluded from considering the issue of the trial court's jurisdiction to modify Appellant's sentences, despite the fact that the parties have not raised the issue. As this court stated in Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985), when the issue is whether the trial court acted in excess of its authority, it becomes a question of subject-matter jurisdiction. Since the holding in Lambert, this court has consistently held that a trial court's loss of jurisdiction over a defendant "is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court." Moseley v. State, 349 Ark. 589, 597, 80 S.W.3d 325, 329 (2002); Pike v. State, 344 Ark. 478, 484, 40 S.W.3d 795, 799 (2001); DeHart v. State, 312 Ark. 323, 326, 849 S.W.2d 497, 499 (1993)(quoting Coones v. State, 280 Ark. 321, 322, 657 S.W.2d 553, 555 (1983)); see also Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). In State v. Dawson, 343 Ark. 683, 694, 38 S.W.3d 319, 326 (2001), this court explained:

Because jurisdiction is the power or authority of a court to hear a case on its merits, lack of subject-matter jurisdiction is a defense that may be raised at any time by either party, even for the first time on appeal. Ibsen, supra; Young v. Smith, 331 Ark. 525, 964 S.W.2d 784 (1998); Ottens, supra. Subject-matter jurisdiction also may be raised before this court on its own motion, and this court has done so in criminal cases. See Simpson v. State, 310 Ark. 493, 837 S.W.2d 475 (1992); Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983).

Gavin, ___ Ark. at ___, ___ S.W.3d at ___. As our supreme court did in Gavin, we will treat the issue of whether the trial court lacked authority to modify appellant's sentence as an issue of subject-matter jurisdiction raised by this court on its own motion.

Act 1569, effective April 15, 1999, amended Ark. Code Ann. § 5-4-301(d) (Repl. 1997) to empower circuit courts to modify original sentences of suspension or probation even though a judgment order has been entered. However, our supreme court has declined to apply Act 1569 retroactively. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001). Thus, because Act 1569 did not become effective until after the criminal acts committed in this case, the Act does not apply.

In the instant case, appellant entered a guilty plea and was convicted of delivery of cocaine. He was sentenced to four years' imprisonment and six years' suspended imposition of sentence. Following a petition to revoke by the State, appellant's suspended imposition of sentence was revoked. The trial court modified his sentence to fifteen years' imprisonment in the Arkansas Department of Correction and a fifteen year suspended imposition of sentence. Pursuant to the supreme court's precedent in Gavin, supra, the trial court was without jurisdiction to modify appellant's sentence in this case.

Accordingly, we reverse the order of the trial court 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 suspended sentence.

Hart and Neal, JJ., agree.