Lewis v. State

Olly Neal, Judge.

Appellant pled guilty on September 20, 1993, to possession of methamphetamine in violation of Arkansas Code Annotated § 5-64-401 (Repl. 1993), and was sentenced to a three-year term of imprisonment. The imposition of appellant’s prison sentence was purportedly suspended upon certain conditions. The State filed its petition to revoke his probation on September 19, 1996, the final day of his probationary period, and appellant was arrested on September 23, 1996. After a hearing on the State’s petition, appellant’s probation was revoked, and he was sentenced to ten years in the Arkansas Department of Correction, with seven years suspended. He argues on appeal that his sentence was imposed illegally and that the evidence was insufficient to support the revocation of his probation. We agree that the trial court exceeded its statutory authority in setting appellant’s sentence, and, therefore, we reverse and dismiss, based on the trial court’s lack of jurisdiction.

Although appellant was arrested for violation of an order of protection, after his period of probation had already expired, the State filed its revocation petition within the probationary period.

During a hearing on the charge of violating the order of protection appellant responded to the prosecuting attorney’s question: “Do you have any devices on [your ex-wife’s] phones or on her phone lines at her residence that you have put there?” by replying “I did at one time.” This testimony was made a part of the record of the revocation proceedings without objection from appellant. Appellant also admitted during the revocation hearing that he placed an electronic recording device on his ex-wife’s telephone line and intercepted some of her private conversations, and stated that he did so “sometime between January 1996 and December 1996.” Appellant’s own testimony was clearly sufficient to establish a violation of Arkansas Code Annotated § 5-60-120 (Repl. 1993), Interception and recording.

Appellant’s second argument is that his sentence is illegal in that the trial court acted in excess of its statutory authority when it sentenced him to a period of imprisonment greater than “the fixed term remaining on the suspended sentence.” Appellant’s argument, which is premised on Arkansas Code Annotated § 5-4-309(f) (Repl. 1993), assumes that he received an actual sentence to a term of imprisonment after his 1993 guilty plea. After reviewing the language the court used in the 1993 judgment that was entered upon appellant’s guilty plea, we must agree. The court’s order states in relevant part:

The defendant John Alvin Lewis, entered his plea of guilty pursuant to Act 346 of 1975 to the reduced charge of Possession of a Controlled Substance (C Felony) [Methamphetamine] and upon recommendation by the Prosecuting Attorney, punishment is fixed at three (3) years in the Department of Correction, with imposition of said sentence suspended .... [Emphasis added.]

Because the court used the term “fixed” in reference to appellant’s sentence, and because it stated a specific time that appellant had to serve, we cannot say that the court effectively suspended the imposition of appellant’s sentence. See Lee v. State 299 Ark. 187, 772 S.W.2d 324 (1989); and Lyons v. State, 35 Ark. App. 29, 813 S.W.2d 262 (1991). Our supreme court noted in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980):

There is a substantial difference between advising a defendant that he is sentenced to 5 years suspended subject to certain behavioral requirements and in advising a defendant that the imposition of sentence will be suspended or postponed for 5 years conditioned on the same behavioral requirements. If the appellant had been sentenced in compliance with Section 41-803 by the suspension of the imposition of sentence, rather than by the execution of sentence, the trial court could have sentenced him to 15 years imprisonment upon revocation of the suspension, as is authorized by Ark. Code Ann. § 41-1208(6) .... We should, however acknowledge that Section 41-1208(6) was partially repealed by implication in 1979. (Decision under prior law.)

Where a trial court imposes a definite sentence upon acceptance of a guilty plea or a finding of guilt, and orders that the execution of the sentence be suspended, Arkansas Code Annotated § 16-93-402(e)(5) (Repl. 1997) limits the court’s sentencing authority to imposition of a sentence not exceeding the length of the sentence originally imposed. Culpepper, supra.

Based on the foregoing discussion, we find that the trial court was without authority to sentence appellant on the original charge of possession of a1' controlled substance to more than the time remaining on his original three-year fixed sentence. Because appellant’s original fixed sentence expired on September 20, 1996, three days before appellant was arrested, we reverse and dismiss.

975 S.W.2d 445

Reversed and dismissed.

Jennings and Stroud, JJ., agree.