Fleming v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: LARRY D. VAUGHT
• Citation: Fleming v. State, 2013 Ark. App. 551, No. CR-13-215 (Ark. App. Oct 02, 2013)
• Decision Date: 02 October 2013
• Docket Number: No. CR-13-215,CR-13-215
• Parties: LELAND FLEMING APPELLANT v. STATE OF ARKANSAS APPELLEE

2013 Ark. App. 551

LELAND FLEMING APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-13-215

ARKANSAS COURT OF APPEALS DIVISION I

Opinion Delivered October 2, 2013

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [No. 17 CR-2002-63]

HONORABLE GARY COTTRELL, JUDGE

AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Leland Fleming claims that his suspended sentence was erroneously revoked for non-payment of restitution based on the fact that the amount of required restitution was increased without his knowledge and express consent. He also claims that the trial court was without jurisdiction to revoke his suspended sentence. After considering the merits of his arguments, we affirm his sentence.

Fleming pled no contest to a charge of non-support on May 20, 2002. He was sentenced to a five-year suspended imposition of sentence and was ordered to pay $2012.50 in restitution. He was also given thirty days of community service, to be served on the weekends. However, on May 31, 2002, the judgment and disposition order was entered, noting that the restitution amount had been amended to $9928, per the child-support-enforcement ledger. This amended restitution order was acknowledged and signed by Fleming's defense counsel.

On October 7, 2009, Fleming pled guilty to contempt, and he was sentenced to thirty-seven days in the Crawford County Detention Center, with credit for thirty-seven days served.¹ He was also ordered to pay the restitution previously ordered. Fleming made restitution payments until September 27, 2011; he had paid a total of $5450 in restitution by that time. On August 30, 2012, the State petitioned to revoke Fleming's suspended sentence, citing his failure to pay restitution. Fleming moved to dismiss the petition, based on his allegation that he failed to receive written notice of the change in his restitution requirements. The motion was twice overruled. Fleming was then sentenced to eighteen months' imprisonment in the Arkansas Department of Correction. This appeal followed.

Fleming's argument on appeal rests on the fact that on May 20, 2002, when he pled no contest to non-support, he signed a written document entitled "Conditions of Suspension or Probation" that provided that he pay $2072.50 in restitution. This same amount was included as part of his plea agreement. However, his judgment and disposition order required that he pay $9928 in restitution. The circuit court held a hearing on the matter. Fleming argued there, as he does on appeal, that the petition to revoke should have been dismissed based on the lack of written notice of the modified restitution amount. He claims that the restitution obligation should be controlled by the plea agreement and conditions document that he signed, requiring that he pay only $2072.50. The State responded that a judgment and disposition order signed by the court and filed of record controlled over the other documents received by Fleming. TheState also argued that Fleming's defense counsel had signed the amended order on Fleming's behalf, which provided Fleming with written notice through his agent.

According to Arkansas Code Annotated section 5-4-303(c)(8) (Supp. 2011), a defendant has a procedural right under the statute to a written statement explicitly setting forth the defendant's conditions of release. However, when the "twin purposes" of the notice requirement—assisting the defendant to lead a law-abiding life and preventing confusion on the defendant's part—are otherwise met, the record need not reflect that defendant actually received written notice. Thorton v. State, 267 Ark. 675, 677, 590 S.W.2d 57, 58-59 (1979)....