Patricia Ann King v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

PATRICIA ANN KING

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-727

March 31, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 97-164]

HON. JOHN W. LANGSTON,

CIRCUIT JUDGE

REVERSED AND DISMISSED

Josephine Linker Hart, Judge

In an order filed April 1, 2003, the circuit court revoked the probation of appellant, Patricia Ann King, and sentenced her to three years' imprisonment. On appeal, appellant argues that the court lacked jurisdiction to revoke her probation because her probation had been previously revoked. In response, the State argues that her probation had not been previously revoked, and therefore, the court had jurisdiction to revoke her probation. As we conclude that appellant's argument has merit, we reverse and dismiss.

The parties agree that a circuit court loses jurisdiction to revoke a defendant's probation if the offense occurred before April 15, 1999, and the court previously revoked the probated sentence. See generally Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). Here, however, the parties disagree over whether the April 1, 2003, revocation was appellant's first or second revocation.

The facts are as follows: On April 23, 1997, the court entered a judgment and disposition order that provided that appellant had entered a negotiated plea of guilty to the crime of theft of property. She was placed on probation for five years and ordered to pay $200 in fines, $800 in restitution, and court costs. On December 8, 2000, the State filed a petition for revocation alleging in part that appellant failed to pay her fine, restitution, and court costs. On January 11, 2001, the court entered a signed order styled "Judgment and Commitment Order," which included theft of property and probation revocation in a list of the total number of offenses. Written on the commitment order, next to the listing of the offense of theft of property, was the notation: "Defendant committed on failure to pay fine & court costs $295.50." No other information was provided on the order.

A hearing was held on April 16, 2001, at which the court addressed the State's revocation petition. At the hearing, the State informed the court that the parties had agreed to modify the conditions of appellant's probation in that, in addition to the previous conditions of probation, appellant would complete drug treatment, perform twenty-five hours of community service work, and pay her fees and restitution, all by September 1, 2001. Appellant agreed to this, and the State moved to nolle-pros the petition. The court's docket indicates that the petition for revocation was nolle-prossed.

On October 3, 2001, the State filed a petition to revoke appellant's probation. A probation revocation hearing was held on September 6, 2002, with a follow-up hearing held on March 28, 2003. On April 1, 2003, the court entered an order styled "Judgment and Commitment Order," which included theft of property and probation revocation in a list of the total number of offenses. The order provided that appellant was sentenced to three years' imprisonment, that appellant's commitment was the result of the revocation of her probation, and that she was found guilty by the court.

On appeal, appellant argues that the order entered January 11, 2001, constituted a revocation of appellant's probation, and therefore, under McGhee, the circuit court lacked jurisdiction to enter the April 1, 2003, order again revoking her probation. The State, however, contends that the January 11, 2001, order was not an order revoking appellant's probation. The State notes that the January 11, 2001, order preceded the April 16, 2001, hearing on the State's petition to revoke; that at the hearing, the petition was nolle-prossed; and that the court's docket does not reflect the January 11, 2001, order. Rather, the State argues that the order, as authorized by Ark. Code Ann. § 5-4-203(a)(1) (Repl. 1997)1, "was only a jail-for-dollar, failure-to-pay-fine commitment of the appellant for her failure to pay her fine of $295.50 and court costs, as the order plainly recites." The State notes that an alias bench warrant was issued on December 11, 2000, for failure to pay a fine balance of $295.50, which the State contends is consistent with Ark. Code Ann. § 5-4-203(a)(2) (Repl. 1997), while another alias bench warrant was issued that same day on the probation revocation. The State also notes that a "Speed Letter" dated December 19, 2000, requested that appellant be committed on the fine and court costs. Further, the State argues that the January 11, 2001, order was never enforced, noting that the State filed a verified application to revoke appellant's bond on January 30, 2001, which recites that appellant was released on January 3, 2001, before the January 11, 2001, order was filed, and used a controlled substance while on bond.

We conclude that appellant's probation was revoked by the January 11, 2001, order. Judgments are generally construed in the same manner as other instruments, and the determinative factor is the intention of the court, which is derived from the judgment and the record, including the pleadings and the evidence. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993). Here, there is no reference to Ark. Code Ann. § 5-4-203(a)(1) (Repl. 1997), in the January 11, 2001, order, the court's docket, or anywhere else in the record indicating that the court committed appellant under that statute. Furthermore, the order followed a petition to revoke appellant's probation that was filed December 8, 2000, and that petition was based in part on appellant's failure to pay her fine and court costs in the amount of $295.50, which is the same basis listed in the January 11, 2001, order for appellant's commitment. The State observes that the revocation petition was nolle-prossed at the April 16, 2001, hearing and suggests that the January 11, 2001, order was never enforced. This, however, does not negate the fact that the January 11, 2001, order was entered and that it lists probation revocation as one of the offenses. Given this record, we conclude that the January 11, 2001, order revoked appellant's probation, and therefore, the court was without jurisdiction to revoke appellant's probation on April 1, 2003. Consequently, we reverse and dismiss.

Reversed and dismissed.

Gladwin and Griffen, JJ., agree.

1 The statute provides that

[w]hen a defendant sentenced to pay a fine or costs defaults in the payment thereof or of any installment, the court, upon its own motion or that of the prosecuting attorney, may require him to show cause why he should not be imprisoned for nonpayment.