Nelson Nimmer v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR04-0538

JANUARY 5, 2005

NELSON NIMMER AN APPEAL FROM THE DESHA

APPELLANT COUNTY CIRCUIT COURT

v. [CR98-58-4]

STATE OF ARKANSAS HONORABLE DON E. GLOVER,

APPELLEE JUDGE

AFFIRMED

Olly Neal, Judge

On October 14, 1998, appellant Nelson Nimmer was convicted of delivery of cocaine. He was sentenced to serve four years in the Arkansas Department of Correction, followed by a six-year suspended imposition of sentence. A condition of appellant's suspension was that he not commit any offense punishable by imprisonment. The State filed a petition to revoke on January 8, 2003, alleging that appellant had attacked a woman and inflicted injuries that resulted in her permanent disfigurement. At the revocation hearing, appellant was sentenced to fifteen years imprisonment, followed by a fifteen-year suspended-imposition of sentence. In Nimmer v. State, CACR03-576, we held that the trial court did not have jurisdiction to modify appellant's sentence. We reversed the order of the trial court modifying appellant's sentence and remanded with instructions for the trial court to correct the sentence. Upon re-sentencing, the trial court sentenced appellant to six years with credit for time served. Appellant now argues that the trial court lacked jurisdiction to sentence him to the six years' imprisonment.

Act 1569, which went into effect on April 15, 1999, empowered circuit courts with the power to modify original sentences following revocation hearings. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001). However, a trial court loses jurisdiction to modify or amend an original sentence once that sentence is put into execution. See id. Act 1569 does not apply retroactively. Id. Appellant was convicted of offenses that occurred prior to April 15, 1999; therefore, Act 1569, does not apply to the case at bar.

A trial court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation. See Ark. Code Ann. § 5-4-309(e) (Repl. 1997). If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty. Gates v. State, 353 Ark. 333, 107 S.W.3d 868 (2003) (quoting Ark. Code Ann. § 5-4-309(f) (Repl. 1997)). Appellant was originally convicted of a Class Y felony. Therefore, the trial court could have imposed a sentence of ten to forty years or life. Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1997). Accordingly, the trial court retained jurisdiction to revoke appellant's suspended imposition of sentence, and we affirm. Affirmed.

Bird and Griffen, JJ., agree.