Chrissy Gay Fredrickson v. State of Arkansas

Annotate this Case
ar03-694

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR03-694

APRIL 14, 2004

CHRISSY GAY FREDRICKSON AN APPEAL FROM THE POPE

APPELLANT COUNTY CIRCUIT COURT [CR01-277]

v.

STATE OF ARKANSAS HONORABLE DENNIS C. SUTTERFIELD, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

In this appeal from the Pope County Circuit Court, appellant Chrissy Fredrickson argues that the trial court erred in three respects: (1) the sentences imposed against her following the revocation hearing were improper because her criminal conduct that served as the basis for the revocation of probation already had been punished in a separate criminal proceeding, which resulted in separate punishment for the same criminal conduct; (2) the sentences imposed upon her are improper and are a result of prosecutorial delay for which she suffered prejudice; and (3) the trial court lacked subject-matter jurisdiction to sentence her following the revocation hearing. For the reasons set out below, we affirm on all points.

On December 17, 2001, appellant pleaded guilty to having committed aggravated robbery and possession of a defaced firearm on April 21, 2001. The court placed appellant on probation for seventy-two months and ordered her to pay a $850 fine and $150 court costs. Among the terms of her probation, appellant was not to "commit any criminal offense punishable by imprisonment."

On April 3, 2003, appellant pleaded guilty to negligent homicide, tampering with evidence, and fleeing the scene of an accident involving physical injury or death. She was convicted on all counts and sentenced as a habitual offender to serve three concurrent 180 month sentences in the Arkansas Department of Correction. On April 4, 2003, the State filed a petition to revoke appellant's probation on the basis that she had violated the probationary conditions by committing the offenses to which she had pleaded guilty. Following the hearing, the court revoked appellant's probation and ordered her to serve two consecutive terms of seventy-two months. In addition, the court ordered that those terms be served consecutively to the 180 months she received on April 3. This appeal followed.

Appellant does not challenge the sufficiency of the evidence used to revoke her probation; rather, she alleges that the court erred in several other aspects. First, appellant urges that the court imposed improper sentences in the probation revocation because "the same conduct which served to revoke her probation was enhanced already by the use of the habitual offender statute to a range of 3-30 years for the Negligent Homicide offense and 0-15 years on the other class D felonies of which she was sentenced to a term of 15 years on each count." This argument fails for two reasons.

First, there is no law in Arkansas that prevents the State from using an offense to enhance a sentence and from then later seeking to revoke a probated sentence based upon that same offense. Second, even before she was placed on probation, appellant already had seven prior convictions --more than the four needed to sentence her as a habitual. Thus, the court did not have to include the subsequent convictions to enhance appellant's sentence. Therefore, we affirm on this point.

Appellant also contends that because the probation officer testified that he submitted a violation report to the prosecuting attorney's office on July 9, 2002, and because the prosecutor did not file a petition to revoke until after she pleaded guilty to negligent homicide, tampering with evidence, and fleeing the scene of an accident involving physical injury or death, the sentences imposed during the revocation were improper and a result of prosecutorial delay from which she suffered prejudice. Appellant suggests that "[h]ad the revocation hearing been pursued diligently then the trial court would not have had the opportunity to impose consecutive sentences against [her] without [her] assent when she entered her negotiated pleas of guilty to the Negligent Homicide and other charges on April 3, 2003."

In support of her proposition, appellant cites United States v. Lavasco, 431 U.S. 783 (1977) and Scott v. State, 263 Ark. 669, 566 S.W.2d 737 (1978). In Scott, supra, the court reversed and remanded a charge of first-degree murder due to the prosecutor's three-year delay in filing charges. Citing United States v. Lavasco, supra, the court held that the prosecution cannot delay simply for the purpose of gaining a tactical advantage over the accused. Although it is true that there are instances where prosecutorial delay in the bringing of criminal charges may constitute prejudicial error requiring dismissal, the key element is whether or not prejudice results that would require dismissal of those charges. See Cox v. State, 36 Ark. App. 173, 820 S.W.2d 471 (1991).

Notably, a revocation hearing is not equivalent to a criminal prosecution, Lawrence v. State, 39 Ark. App. 39, 839 S.W.3d 461 (2003), and the prosecuting attorney has the sole authority to file a petition for revocation of probation. Ark. Code Ann. § 9-27-310(b)(1) (Supp. 2003). The sentence that appellant received upon the revocation of her probation had nothing to do with the sentence she received pursuant to the plea agreement she entered on the charges that led to the revocation of her probated sentence. The State made appellant aware throughout plea negotiations that a petition to revoke was going to be filed. This is evident by the following exchange:

Court: For the purposes of the record in this case, since this case did take the plea, it was put on the record at that time the defendant was aware that a PTR was going to be filed. I mean, that was made part of the record, as I recall.

State counsel: That's my memory, your Honor.

Defense Counsel: That is correct.

Furthermore, appellant has failed to show how she was prejudiced, and there are no statutory provisions that dictate when a prosecutor should file a petition to revoke probation.

Appellant's third and final point is that the trial court lacked subject-matter jurisdiction to sentence her following the revocation hearing because the court had imposed a fine at the same time that it placed her on probation, which deprived it of jurisdiction to later sentence her for violating the conditions of her probation. We disagree.

The imposition of probation and a fine is a valid sentence, Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002), and the filing of the judgment and disposition order constitutes a valid execution of a sentence. See Timmons v. State, 81 Ark. App. 219, 100 S.W.3d 52 (2003). After a defendant's sentence of probation and a fine is put into execution, the trial court retains jurisdiction to modify the original sentences of suspension or probation upon the commission of other crimes. See Act 1569 of 1999 (codified at Ark. Code Ann. § 5-4-301(d) (Supp. 2001)). If the court revokes probation, it may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty. See Webb v. State, 66 Ark. App. 367, 990 S.W.2d 591 (1999).

Here, the trial court revoked appellant's probation and sentenced her to six years for aggravated robbery and six years for possession of a defaced firearm - sentences that could have been originally imposed. The court had not lost jurisdiction to impose these sentences.

For the foregoing reasons, we affirm this case in all respects.

Vaught and Roaf, JJ., agree.