Bobby Scissom v. State of Arkansas
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DIVISIONS III & IV
CACR 05-725
March 15, 2006
BOBBY SCISSOM
APPELLANT
APPEAL FROM THE POPE
COUNTY CIRCUIT COURT
[CR-03-163]
V.
HONORABLE JOHN S. PATTERSON,
CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
REVERSED AND REMANDED
A NDREE L AYTON R OAF, Judge
This is an appeal from a revocation proceeding. Bobby Scissom appeals from the
trial court’s imposition of twelve months confinement in a regional correction facility as an
additional condition of probation. On appeal, Scissom argues that the sentence exceeds
the maximum authorized as a condition of his probation because he had originally been
ordered to serve 120 days in the county jail. The State concedes error. We reverse the
trial court’s order and remand the matter for resentencing in accordance with this opinion.
In the underlying case, Scissom pleaded guilty to the offense of possession of
marijuana with intent to deliver, a Class C felony, and was placed on probation for a
period of sixty months, with several designated conditions of probation, including that he
was to serve 120 days in the Pope County Jail. The judgment and disposition order and
the conditions of suspension or probation were filed on October 2, 2003. On January 5,
2005, the State filed a petition to revoke Scissom’s probation, alleging that he had violated
several of the conditions of his probation. The revocation hearing was held on March 7,
2003. Following the presentation of evidence, the trial court stated: “I’m not
going to revoke his probation but I am going to add as a condition of probation that he be
sent to a Regional Correction Facility for one year, with credit for time served.” In its
March 8, 2005 order, the trial court specifically ordered, “The Court orders that
Defendant’s probation shall not be revoked, but that defendant shall serve 12 months in
the Regional Punishment Facility as an additional condition of probation.”
Scissom appeals from the imposition of additional confinement; the State has not
cross-appealed the trial court’s order that Scissom’s probation not be revoked. For his sole
point of appeal, Scissom contends that when the trial court added the additional twelve
months’ confinement as a condition of his probation, after previously ordering him to
serve 120 days in the Pope County Jail, it was in excess of the period of confinement
allowed by law. We agree.
The statute in effect at the time the underlying offense was committed must govern
sentencing, and in the absence of a provision stating that an act will apply retroactively, the
act will apply prospectively only. State v. Williams, 315 Ark. 464, 868 S.W.2d 461 (1994).
According to the Information, the crime for which Scissom pleaded guilty and received
probation was committed “on or about 2/27/03.” The Arkansas Code Annotated section
5-4-304 then in effect provided in pertinent part:
( c ) Following a revocation hearing held pursuant to Arkansas Code § 5-4301 and wherein a finding of guilt has been made or the defendant has entered a
plea of guilty or nolo contendere, the court may add a period of confinement to be
served during the period of suspension of imposition of sentence or period of
probation, if no period of confinement was included in the original order placing the
defendant on suspended imposition of sentence or probation.
(d) (1) The period actually spent in confinement pursuant to this section shall not
exceed one hundred twenty (120) days in the case of a felony or thirty (30) days in the
case of a misdemeanor.
(2) For purposes of this subsection, any part of a twenty-four-hour period
spent in confinement shall constitute a day of confinement.
(e) If the suspension or probation of the defendant is subsequently revoked
and the defendant is sentenced to a term of imprisonment, the period actually spent
in confinement pursuant to this section shall be credited against the subsequent
sentence.
(Supp. 2001) (emphasis added). By Act 1742 of 2003, which became effective July 16,
2003, i.e., after the underlying offense was committed here, section 5-4-304(d) was
amended to provide:
(d)(1)(A) The period actually spent in confinement pursuant to this section
in a county jail, city jail, or other authorized local detentional, correctional, or
rehabilitative facility shall not exceed one hundred twenty (120) days in the case of
a felony or thirty (30) days in the case of a misdemeanor.
(B) In the case of confinement to a Department of Community Correction
facility, the period actually spent in confinement under this section shall not exceed
three hundred sixty-five (365) days.
In paragraph 17 of the original “conditions of suspension or probation,” Scissom
was ordered to “serve a period of confinement for 120 days at county jail credit 2 days
served.”
In the order following the revocation hearing, which was filed on March 8,
2005, the trial court ordered “that Defendant’s probation shall not be revoked, but that
defendant shall serve 12 months in the Regional Punishment Facility as an additional
condition of probation.” Because the statute in effect at the time the underlying offense
was committed only allowed for a period of confinement not to exceed 120 days, the trial
court, at the revocation hearing, apparently operated under the amended statute, which
became effective July 16, 2003, and clearly erred in imposing an additional period of
confinement of 365 days. In addition, subsection (c) of the statute in effect when the
underlying offense was committed provided that a period of confinement to be served
during the time of probation may be added “if no period of confinement was included in
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the original order placing the defendant on ... probation.” (Emphasis added.) Here, a
period of confinement was included in the original order, i.e., 120 days. Therefore, no
additional period of confinement may now be imposed.
Accordingly, we reverse and remand this matter with instructions to strike the
twelve-month period of confinement imposed by the trial court as an additional condition
of Scissom’s probation.
The trial court, of course, may impose such other available
additional conditions of probation or fines during the period of probation as authorized by
Ark. Code Ann. § 5-4-306(b) (Supp. 1999). See Reeves v. State, 339 Ark. 304, 5 S.W.3d
41 (1999).
Reversed and remanded.
H ART, B IRD, and N EAL, JJ., agree.
P ITTMAN, C.J., and G LOVER, J., concur in part; dissent in part.
David M. Glover, J., concurring in part, dissenting in part.
I dissent from the
majority opinion to the extent that it limits the trial court to imposing “such other
available additional conditions of probation or fines during the period of probation as
authorized by Ark. Code Ann. § 5-4-306(b) (Supp. 1999).” In my opinion, we should
not, at this point, attempt to define the full range of options available to the trial court
upon remand. It appears to me that it is premature to decide that the trial court is limited
to adding to or modifying the conditions of appellant’s probation.
Notably, at the
revocation hearing, the trial court specifically found that appellant had violated the terms
and conditions of his probation. Whether the trial court could decide upon remand to
revoke the probation is an issue that is not yet before us and one which has not been
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briefed by the parties. I do not read the case cited by the majority, Reeves v. State, 339
Ark. 304, 5 S.W.3d 41 (1999), which did not involve a revocation hearing, as prohibiting
the trial court from considering revocation as an option upon remand. In the absence of
any definitive authority regarding the options available to the trial court, I think that we
should express no opinion on that matter.
P ITTMAN, C.J., joins in this opinion.
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