Green v. State , 2014 Ark. App. 580 ( 2014 )

Cite as 2014 Ark. App. 580
ARKANSAS COURT OF APPEALS
DIVISION II
No.CR-13-1090
Opinion Delivered OCTOBER 29, 2014
JAMES MITCHELL GREEN
APPELLANT APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
V. [NO. CR-06-222]
STATE OF ARKANSAS HONORABLE DAVID RAY
APPELLEE GOODSON, JUDGE
REMANDED TO SETTLE AND
SUPPLEMENT THE RECORD;
SUPPLEMENTAL ADDENDUM
ORDERED
BILL H. WALMSLEY, Judge
Appellant James Green appeals from the revocation of his probation. On appeal, he
argues that the trial court erred in overruling his confrontation-clause objection. We cannot
reach the merits at this time because we must remand for the record to be settled and
supplemented.
On March 16, 2006, appellant pled guilty to furnishing prohibited articles and was
sentenced to four years’ probation. On October 26, 2007, the State filed a petition to revoke
appellant’s probation, alleging that he had violated several conditions of his probation. The
revocation hearing was not held until September 9, 2013. After the hearing, the trial court
revoked appellant’s probation and sentenced him to three years’ imprisonment. The
sentencing order was entered on September 20, 2013.
Cite as 2014 Ark. App. 580
Appellant’s four years of probation had expired well before the entry of the order
revoking probation. The issue of whether a trial court can revoke probation after the
expiration of the probation period is one of jurisdiction. Carter v. State, 350 Ark. 229, 85
S.W.3d 914 (2002). Although appellant has not raised this issue, the supreme court has
consistently held that a trial court’s loss of jurisdiction over a defendant “is always open,
cannot be waived, can be questioned for the first time on appeal, and can even be raised by
this court.” Gavin v. State, 354 Ark. 425, 429, 125 S.W.3d 189, 191 (2003).
If the trial court finds by a preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his or her suspension or probation, the court
may revoke the suspension or probation at any time prior to the expiration of the period of
suspension or probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2013) (emphasis added). A
court may revoke a suspension or probation subsequent to the expiration of the period of
suspension or probation if before expiration of the period:
(1) The defendant is arrested for violation of suspension or probation;
(2) A warrant is issued for the defendant’s arrest for violation of suspension or
probation;
(3) A petition to revoke the defendant’s suspension or probation has been filed
if a warrant is issued for the defendant’s arrest within thirty (30) days of the date of
filing the petition; or
(4) The defendant has been:
(A) Issued a citation in lieu of arrest under Rule 5 of the Arkansas Rules
of Criminal Procedure for violation of suspension or probation; or
(B) Served a summons under Rule 6 of the Arkansas Rules of Criminal
Procedure for violation of suspension or probation.
Ark. Code Ann. § 16-93-308(f). Here, there is an indication in the record that within the
period of probation a warrant was issued for appellant’s arrest for violation of probation.
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Cite as 2014 Ark. App. 580
However, the warrant itself is not in the record. If a valid arrest warrant was not issued, then
the court was without jurisdiction to revoke. Duncan v. State, 103 Ark. App. 107, 286
S.W.3d 776 (2008). Without the arrest warrant or proof of one of the other conditions
allowing post-probation revocation pursuant to Arkansas Code Annotated section 16-93-
308(f), we cannot determine if the trial court had jurisdiction to revoke appellant’s probation.
Thus, we remand to settle the record on this issue.
This court has stated that if anything material to either party is omitted from the record
by error or accident, we may direct that the omission be corrected and that a supplemental
record be certified and transmitted. Whitson v. State, 2013 Ark. App. 730; Ark. R. App.
P.–Civ. 6(e) (as made applicable to criminal cases by Ark. R. App. P.–Crim. 4(a)).
Accordingly, we remand this case to the trial court to settle and supplement the record.
Appellant has thirty days from the date of this opinion to file a supplemental record with this
court. Appellant has seven days after the record is supplemented to file a supplemental
addendum. Ark. Sup. Ct. R. 4-2(b)(4). We encourage review of our rules to ensure that no
other deficiencies are present.
Remanded to settle and supplement the record; supplemental addendum ordered.
HARRISON and GRUBER, JJ., agree.
C. Brian Williams, for appellant.
Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., and Vada
Berger, Ass’t Att’y Gen., for appellee.
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