Opinion
CA CR 10-832
Opinion Delivered February 16, 2011
Appeal from the Chicot County Circuit Court, [CR-2004-38-4A], Honorable Don E. Glover, Judge, Affirmed in part; Reversed and Dismissed in part.
Appellant James Edward Jackson, Jr., brings this appeal from an order of the Chicot County Circuit Court revoking two suspended sentences entered upon his guilty pleas for illegal use of a communication facility and possession of cocaine, both Class C felonies. His sole point on appeal is that the trial court had no jurisdiction to revoke his suspensions and therefore that his sentences are illegal. We agree that the trial court had no jurisdiction to revoke his suspension for possession of cocaine and reverse and dismiss the revocation, but we affirm the order revoking his suspension and sentencing him for illegal use of a communication facility.
The sentences that the trial court revoked in this case were imposed after appellant entered a guilty plea on the charges of illegal use of a communication facility and possession of cocaine. At the plea hearing, held February 28, 2005, the court pronounced that, in exchange for the guilty plea on both charges, "it's the judgment and sentence of this Court to suspend the imposition of sentence for forty-eight (48) months. . . ." On March 1, 2005, a guilty plea statement and sentence recommendation were filed. The sentence recommendation reflects that, if the defendant pleads guilty, the State will recommend a suspended imposition of sentence of forty-eight months. The court's judgment and commitment order, filed the same day, sentenced appellant to a suspended imposition of sentence of sixty months for illegal use of a communication facility and to a suspended imposition of sentence of forty-eight months for possession of cocaine. No postjudgment motion or appeal was filed from the court's order.
The revocation involved in this appeal began on January 29, 2010, when the State filed a revocation petition alleging that appellant was serving a sixty-month suspended sentence for the two felonies mentioned above and that he violated the conditions of his suspended sentence by committing criminal offenses described in the petition and by failing to pay court costs. After a hearing held on May 3, 2010, the trial court found that appellant had violated the terms and conditions of his suspended sentences, revoked his suspensions, and sentenced him to ten years' imprisonment on each conviction, to be served concurrently.
Appellant brings only one point on appeal. He argues that the trial court lacked subject-matter jurisdiction to revoke his suspended sentences because the period of suspension expired on February 28, 2009, before the State filed a petition to revoke. Appellant did not raise this argument in the trial court, but this is an issue of jurisdiction, which appellant may raise for the first time on appeal. See Harris v. State, 80 Ark. App. 181, 92 S.W.3d 690 (2002); Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). The trial court has jurisdiction to revoke a suspended sentence if it finds by a preponderance of the evidence that a defendant has inexcusably failed to comply with the conditions of his suspension or probation "at any time prior to the expiration of the period of suspension or probation." Ark. Code Ann. § 5-4-309(d) (Supp. 2009). The only exceptions to this are if one of the following occurs before expiration of the period: the defendant is arrested, a warrant is issued, a citation in lieu of arrest is issued, or a summons is served pursuant to Ark. R. Crim. P. 6 for violation of the probation or suspension. Ark. Code Ann. § 5-4-309(f).
We turn first to the revocation of appellant's suspension for illegal use of a communication facility. Appellant's sixty-month suspension began to run on March 1, 2005, the day the judgment and commitment order was entered. The five-year period expired on March 1, 2010. Therefore, the court's order revoking appellant's suspension on May 3, 2010, was too late unless it fell within one of the exceptions in Ark. Code Ann. § 5-4-309(f). It did. On February 9, 2010, a summons was served on appellant for violation of his suspension. Because the summons was served before expiration of the suspension period, the court had jurisdiction to revoke the suspended sentence after the period had expired. Ark. Code Ann. § 5-4-309(f)(4)(B).
Appellant argues that, although the judgment and commitment order entered on March 1, 2005, sentenced him to a suspended imposition of sentence of sixty months for this conviction, it was a typographical error and should have said forty-eight months, as the court announced at the plea hearing. Because the suspension was only supposed to be for forty-eight months, he argues that the trial court had no jurisdiction to revoke the suspension, which should have expired in 2009, not in 2010. Appellant is wrong. Whatever the trial court may have pronounced from the bench, it entered an order sentencing appellant to a sixty-month suspension, not forty-eight. Judgment and commitment orders are effective upon entry of record. Bradford v. State, 351 Ark. 394, 401, 94 S.W.3d 904, 909 (2003). An oral order is simply not effective until entered of record. Garduno-Trejo v. State, 2010 Ark. App. 779, at 7, ___ S.W.3d ___, ___. Consequently, we affirm the court's revocation of appellant's suspension and its order sentencing him to ten years' imprisonment on his conviction for illegal use of a communication facility.
We reverse, however, the court's revocation of appellant's suspension on his conviction for possession of cocaine and dismiss the conviction. The judgment and commitment order entered March 1, 2005, imposed a forty-eight-month suspension for this conviction. Therefore the suspension period expired almost a year before the summons was served in this case on February 9, 2010. The trial court had no jurisdiction to revoke under Ark. Code Ann. § 5-4-309.
Affirmed in part; reversed and dismissed in part.
PITTMAN and ROBBINS, JJ., agree.