Bangs v. State, CR
| Decision Date | 13 July 1992 |
| Docket Number | No. CR,CR |
| Parties | Brian Keith BANGS, Appellant, v. STATE of Arkansas, Appellee. 91-283. |
| Court | Arkansas Supreme Court |
William G. Snowden, Forrest City, for appellant.
J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Brian Keith Bangs, appeals from the revocation of his suspended sentence. He makes three arguments on appeal, one of which requires our interpretation of Ark.Code Ann. § 5-4-104 (Supp.1991). Our jurisdiction is therefore proper pursuant to Ark.Sup.Ct.R. 29(1)(c). We find no merit to appellant's arguments and affirm.
On June 6, 1989, appellant pleaded guilty to theft of property, a Class C felony. He was ordered to pay the victims restitution and was sentenced to the Arkansas Department of Correction for three years, and an additional sentence of three years was suspended subject to specific conditions. Two of the conditions of suspension are pertinent to this appeal; the first condition is that appellant report regularly to a probation officer and the second is that appellant not commit any offenses punishable by imprisonment.
After appellant paid approximately one-half of the restitution, the trial court modified appellant's sentence to one and one-half years in the Arkansas Department of Correction with an additional four and one-half years suspended. The trial court entered the modified judgment on September 27, 1989, and incorporated by reference the previously entered conditions of suspension.
In June 1991, appellant was arrested for kidnapping and rape. He was held in the Stone County Jail and escaped from there on June 30, 1991. On August 20, 1991, the trial court held a hearing on the state's petition to revoke appellant's suspension and entered a judgment finding that appellant had violated the terms of his suspended sentence by committing the offense of escape, revoking his suspended sentence, and sentencing appellant to eight years in the Arkansas Department of Correction. It is from this judgment that appellant appeals.
Appellant's first argument is that the trial court erred in sentencing him to suspension and also requiring that he report regularly to a probation officer. He claims that by requiring him to report to a probation officer as a condition of his suspended sentence, the trial court imposed what amounted to de facto probation. Thus, appellant claims that pursuant to Ark.Code Ann. § 5-4-304 (1987), the trial court imposed an illegal sentence by sentencing him to probation following a term of imprisonment. Appellant's claim is that the de facto probation rendered his sentence void ab initio and therefore not subject to revocation by the trial court.
Appellee first responds to this argument with two theories why we should not reach the merits of appellant's claim. First, appellee argues appellant's abstract is flagrantly deficient such that we should affirm pursuant to Ark.Sup.Ct.R. 9. It is true that neither appellant's abstract nor his supplemental abstract includes the conditions of his suspension, a material part of the record which is necessary to an understanding of the questions presented to us for decision. See Ark.Sup.Ct.R. 9(d). However, appellee cured the deficiency by including the pertinent conditions of suspension in its supplemental abstract. See Ark.Sup.Ct.R. 9(e)(1). Second, appellee responds by asserting that appellant did not preserve this argument for appellate review because he did not raise an objection in the trial court concerning the imposition of the condition that he report to a probation officer. It is true that no objection was made below. However, we treat allegations of void or illegal sentences similar to problems of subject matter jurisdiction in that we review such allegations whether or not an objection was made in the trial court. Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986). A sentence is void when the trial court lacks authority to impose it. Id. Here, appellant asserts that the trial court was without authority to impose a sentence of imprisonment followed by probation. Therefore, we address the merits of appellant's argument.
Section 5-4-104(a) provides that a trial court's disposition of a defendant is to be conducted in accordance with Chapter 4 of the Arkansas Criminal Code. Section 5-4-104(e)(3) provides that a trial court may sentence the defendant to a term of imprisonment and suspend imposition of a sentence as to an additional term of imprisonment, but the court shall not sentence a defendant to imprisonment and place him on probation, except as authorized by section 5-4-304.
The distinction between probation and suspension is one of supervision. Ark.Code Ann. § 5-4-101 (1987) defines both probation and suspension as release without pronouncement of sentence. However, probation is defined as "release without pronouncement of sentence but subject to the supervision of a probation officer" and suspension is defined as "release without pronouncement of sentence and without supervision."
In an effort to explain section 5-4-104's simultaneous authorization of suspension following imprisonment and prohibition of probation following imprisonment, the official commentary points out that suspension following imprisonment was authorized because of its widespread use by the Arkansas trial bench. The commentary also explains that probation was prohibited from following imprisonment because supervision by both the court and the Board of Pardons and Paroles is a needless duplication of effort conducive to jurisdictional disputes. Thus, section 5-4-104(e)(3) provides that if a trial court desires to sentence a defendant to both probation and incarceration, it may do so, but only in accordance with section 5-4-304. The incarceration authorized by section 5-4-304 is a period of "shock" confinement in a facility other than the Department of Correction to enhance the effectiveness of a subsequent period of probation or suspension. This shock confinement may be served intermittently but is limited to no longer than ninety days.
Thus, as appellee concedes in its brief, our statutes do not authorize a trial court to impose a sentence of imprisonment in the Arkansas Department of Correction followed by probation. The issue then is whether the trial court did just that--sentence appellant to imprisonment followed by probation. Appellant argues the trial court's requirement that appellant report to a probation officer transformed the suspension into probation. He argues that such a transformation occurred and resulted in his de facto probation.
We have never recognized any doctrine or concept of de facto probation, and appellant has not cited us to any authority, in our jurisdiction or elsewhere, recognizing such a concept. We are not inclined to approve or disapprove such a doctrine in the absence of authority or convincing argument on the subject. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Appellee responds to the merits of appellant's argument by asserting that, should we determine appellant was illegally sentenced to probation following imprisonment, he was not prejudiced because the trial court based the revocation on appellant's violation of the condition that he not commit any offenses punishable by imprisonment. Had the trial court based the revocation on the grounds that appellant violated the condition requiring him to report to a probation officer, the state concedes appellant would have been prejudiced.
Although we do not reach a determination that appellant was illegally sentenced to a term of imprisonment followed by probation, we agree with appellee's argument that appellant was not prejudiced by the trial court's actions in this case. No matter how one views the sentence that was imposed in this case, there is no overlooking the fact that the trial court revoked appellant's suspension because he violated the condition prohibiting him from committing any offenses punishable by imprisonment, and not because he violated the condition requiring him to report to a probation officer. Thus, the prejudice suffered by appellant, the revocation of his suspension, was a result of the escape, and not an allegedly illegally imposed probation.
Even if we were to determine that appellant was illegally sentenced to a term of imprisonment followed by probation, the remedy for an illegal sentence is not dismissal of all related proceedings in the trial court and release from imprisonment, as appellant requests. Neither is the remedy dismissal of the state's petition to revoke. The general rule is that if the original sentence is illegal, even though partially executed, the sentencing court may correct it. Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985) (citing...
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