Furlow v. State
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Cite as 2009 Ark. App. 595
ARKANSAS COURT OF APPEALS
DIVISION I
No.
CACR09-170
RHATEZ DEMORE FURLOW,
APPELLANT
Opinion Delivered 16
SEPTEMBER 2009
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT,
[NO. CR-07-1466]
V.
STATE OF ARKANSAS,
APPELLEE
THE HONORABLE DAVID
BURNETT, JUDGE
AFFIRMED
D.P. MARSHALL JR., Judge
This revocation case is about a perceived discrepancy between the circuit court’s
pronounced sentence at the hearing and its imposed sentence in the judgment and
commitment order. Rhatez Furlow pleaded guilty to burglary and theft, both class
“C” felonies that carried a maximum of ten years’ imprisonment each. Ark. Code
Ann. § 5-4-401(a)(4) (Repl. 2006); Ark. Code Ann. § 5-36-103(b)(2) (Supp. 2009);
Ark. Code Ann. § 5-39-201(b)(2) (Repl. 2006). The court gave Furlow five years’
supervised probation for the burglary and suspended imposition of a five-year sentence
for theft. Less than three months later, the State petitioned to revoke based (among
other things) on new charges of burglary and theft at local schools.
At the end of the revocation hearing, the court sentenced Furlow to twenty
Cite as 2009 Ark. App. 595
years’ imprisonment: “I don’t take breaking into schools very lightly, and the defendant
will be sentenced to twenty years in the Department of Correction.” The judgment
reflected ten years on theft consecutive to ten years on burglary.
Two preliminary points. First, Furlow does not make a sufficiency challenge.
Second, Furlow calls his sentence illegal because, he says, the trial judge did not
exercise discretion when imposing consecutive sentences. We disagree. The court’s
words in sentencing––“I don’t take breaking into schools very lightly[ ]”––show
discretion exercised based on the nature of Furlow’s actions. E.g., Love v. State, 324
Ark. 526, 530, 922 S.W.2d 701, 704 (1996); Ark. Code Ann. § 5-4-403(a) (Repl.
2006).
In his main argument, Furlow contends that the in-court pronouncement must
prevail when it is contradicted by the judgment and commitment order. He says the
trial court’s pronouncement of “twenty years” contradicts the judgment, which
ordered ten years for theft consecutive to ten years for burglary.
We doubt our
jurisdiction over Furlow’s discrepancy argument, for he did not object below to his
sentences being imposed consecutively. Brown v. State, 326 Ark. 56, 60, 931 S.W.2d
80, 83 (1996).
Even if preserved, Furlow’s argument lacks merit for several reasons. Our law
gives the circuit court leeway to modify a sentence between pronouncement and
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Cite as 2009 Ark. App. 595
judgment. Bush v. State, 90 Ark. App. 373, 377–78, 206 S.W.3d 268, 271 (2005).
Furlow incorrectly relies on Turner v. State, 88 Ark. App. 40, 194 S.W.3d 225 (2004),
for the contrary proposition. Bush, 90 Ark. App. 373, 378, 94 S.W.3d 268, 271 (2005)
(expressly rejecting Furlow’s reading of Turner). Thus, any such discrepancy between
the trial judge’s sentencing pronouncement and the judgment and commitment order
makes no legal difference.
And we see no discrepancy. In a revocation, the court may order any sentence
that it could have imposed originally. Ark. Code Ann. § 5-4-309(g)(1)(A) (Supp.
2009). When he committed burglary and theft, Furlow faced up to twenty years’
imprisonment. At the revocation hearing, the court pronounced twenty years––a
sentence only possible if the court was imposing consecutive sentences. The judgment
reflected this.
Affirmed.
H ART and G LOVER, JJ., agree.
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