McGee v. State, CR

• Decision Date: 22 December 1980
• Docket Number: No. CR,CR
• Citation: 271 Ark. 611,609 S.W.2d 73
• Parties: John Wayne McGEE, Appellant, v. STATE of Arkansas, Appellee. 80-152.
• Court: Arkansas Supreme Court

Page 73

609 S.W.2d 73

271 Ark. 611

John Wayne McGEE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 80-152.

Supreme Court of Arkansas.

Dec. 22, 1980.

E. Alvin Schay, State Appellate Defender by Ray Hartenstein, Deputy Defender, Little Rock, for appellant.

Steve Clark, Atty. Gen. by James F. Dowden, Asst. Atty. Gen., Little Rock, for appellee.

MAYS, Justice.

In January 1980, after appellant allegedly committed the offense of theft of property on December 16, 1979 and the offenses of felon in possession of a firearm, rape, and burglary approximately one week later on December 22, the prosecuting attorney filed a petition to revoke a probation and a suspended sentence which he had received in 1976 and 1979, respectively. The 1976 probation grew out of a plea of nolo contendere to a charge of theft of property in which the court postponed the pronouncement of sentence and placed appellant under supervision for a period of four years. The suspended sentence stems from a revocation on October 26, 1979 of another probation which the court had granted for three years in connection with a guilty plea on June 6, 1979 to a charge of felon in possession of a firearm. The suspended sentence resulted when the court revoked the 1979 probation and imposed a sentence of five years, suspending all but 119 days, which had already been served, for burglary and theft of property allegedly committed by appellant on June 19, 1979. ¹

After several hearings on the prosecutor's revocation petition, the court eventually revoked appellant's probation and suspended sentence, imposing a total prison term of nine years, five years for violating the terms of his 1976 probation and four years for violating the terms of his 1979 suspended sentence. Now on appeal appellant's sole contention is that the trial court erred in sentencing him on the two revocations to more than 7 years, the combined terms of his 1976 and 1979 probations.

We do not reach appellant's argument in regard to the revocation of the three year 1979 probation since no objection to the revocation and imposition of a five year suspended sentence was raised in the trial court. Having accepted the sentence, appellant now has no legal standing to complain. See Gregory v. Gordon, 243 Ark. 635, 420 S.W.2d 825 (1967). However, appellant's objection in regard to the revocation of his 1976 probation was timely raised and, therefore, must be considered on its merits.

The appellant's sentence challenge grows out of our decision in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). In Culpepper the trial court revoked a five year suspended sentence with three years probation and imposed a 15 year prison term because the defendant violated the conditions of his suspended and probated sentence. Recognizing that the defendant not only did not appreciate the extent of his jeopardy at the time he received his suspended and probated sentence, but that the 1976 Criminal Code no longer allowed the suspension of execution of a sentence, or a combined suspended and probated sentence, we limited the trial court on revocation to the sentence actually pronounced, five years. We also emphasized that a trial court could only release a defendant by postponing pronouncement of sentence for a specified period of suspension or probation. Although the trial court here postponed pronouncement of sentence for a specified period of probation, four years, appellant contends that the specified period of probation represents a "sentence imposed" which limits the trial court on any revocation.

Appellant's argument is grounded in a 1979 Amendment to Ark.Stat.Ann. § 43-2332 (Repl.1977), which provides in part:

As speedily as possible, the probationer shall be taken before the court having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence which might have been originally imposed. (Emphasis supplied)

The appellant seizes upon the words, "sentence imposed," arguing that they mean the period of probation, and seeks to limit the trial court upon any probation revocation to the term of the probation. In essence, appellant employs this language to sanction reinvesting the trial court with the authority to release a defendant on probation by pronouncing sentence and suspending execution. This view was obviously rejected in Jefferson v. State, 270 Ark. 909, 606 S.W.2d 592 (1980), where we recently recognized that specifying a period of probation in no way limited a trial court on revocation when no sentence had been imposed or pronounced. Nothing that we said in Culpepper v. State, supra, was meant to suggest otherwise. Under the 1976 Criminal Code, a sentence is not imposed until the court pronounces a fixed term of imprisonment as opposed to simply specifying a definite period of time of probation. See Ark.Stat.Ann. §§ 41-801(2) and 41-1208(6) (Repl.1977). The 1979 Amendment to Ark.Stat.Ann. § 43-2332 (Repl.1977) was obviously intended to merely effect a change in the salary administration of probation officers, although there was another variance in language between the original and amended version which is not material to this case. The amended statute, therefore, must be construed along side other relevant provisions of the Criminal Code and reconciled to effect the legislative intent of the combined whole. See City of Fort Smith v. Brewer, 255 Ark. 813, 502 S.W.2d 643 (1973); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969); Bond v. Kennedy, 213 Ark. 758, 212 S.W.2d 336 (1948). Unquestionably, the legislature did not intend Ark.Stat.Ann. § 43-2332 (Supp.1979) to effect a...