McGhee v. State, CR

• Decision Date: 15 October 1998
• Docket Number: No. CR,CR
• Citation: 975 S.W.2d 834,334 Ark. 543
• Parties: Brian McGHEE, Appellant, v. STATE of Arkansas, Appellee. 98-561.
• Court: Arkansas Supreme Court

Page 834

975 S.W.2d 834

334 Ark. 543

Brian McGHEE, Appellant, v. STATE of Arkansas, Appellee.

No. CR 98-561.

Supreme Court of Arkansas.

Oct. 15, 1998.

Dale E. Adams, Little Rock, for Appellant.

Winston Bryant, Atty. Gen., David R. Raupp, Senior Asst. Atty. Gen., Little Rock, for Appellee.

THORNTON, Justice.

This case involves the second revocation of probation of appellant, Brian McGhee, who was charged with two counts each of breaking or entering and theft of property. Appellant entered guilty pleas and was placed on thirty-six months' probation and ordered to pay a fine of $250.00, court costs of $113.25, restitution of $400.00, and a monthly fee of $20.00 to the adult probation program. Appellant's probation was revoked on March 7, 1996, and appellant was sentenced to sixty days' imprisonment in the Department of Community Punishment with probation to follow incarceration. After serving his imprisonment, the State filed a second petition for revocation based on new allegations on June 9, 1997. After appellant's motion to dismiss was denied, the trial court sentenced him to twenty-four months in prison for the two original counts of breaking or entering and twelve months in jail for the two theft of property charges. The State concedes that if we adhere to precedent, the trial court was without jurisdiction to revoke appellant's probation the second time; but they urge this court to overrule Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), which holds that a plea of guilty, coupled with a fine and a suspended imposition of sentence, constitutes a conviction, thus depriving the trial court of jurisdiction to amend or modify a sentence which has been executed. We reverse the trial court and decline to overrule Harmon.

In Harmon, the appellant pleaded guilty to a reduced, class-A misdemeanor charge of first-degree assault against her husband. The circuit court noted that imposition of the sentence was suspended for one year conditioned upon certain factors, which included payment of a $500 fine and $107.75 court costs. After violating the terms of her suspended sentence, the circuit court ruled that her suspended sentence would remain in effect, but that it would be modified by an additional $500 fine and a sentence of two weeks in the county detention center.

In Harmon, the State argued that the defendant's suspended sentence was not revoked, but rather that it was modified pursuant to Ark.Code Ann. § 5-4-306(b) (Repl.1993), which states: "During the period of suspension or probation, the court, on motion of a probation officer or the defendant, or on its own motion, may modify the conditions imposed on the defendant or impose additional conditions authorized by § 5-4-303." Section 5-4-303(c) does not explicitly include a period of incarceration or a fine, but the State argued that it was comprehended by subsection (c)(10), which provides for "conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience."

Although the State fails to make the same argument today, section 5-4-303(c) is not applicable because, as we noted in Harmon, Ark.Code Ann. § 5-4-304 (Repl.1994), explicitly provides for incarceration as an additional condition of an order, but may be used only when the suspension of imposition of sentence is given effect. We have previously held that a trial court loses jurisdiction to amend or modify the original sentence once a valid execution is put into place. DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989) As we stated in Jones, a plea of guilty, coupled with a fine and a suspension of imposition of sentence of imprisonment constitutes a conviction. Id. at 487, 763 S.W.2d at 82. Therefore, the court loses the power to modify the original order.

Precedent, it is said, should not implicitly govern, but discreetly guide. Roane v. Hinton, 6 Ark. (1 Eng.) 525, 527 (1846). The policy of adhering to precedent, or the doctrine of stare decisis, is fundamental to the common law. Precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable. Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968). The court in Parish, setting out the test for determining whether a case should be overruled, stated the following:

Having determined as we have here that a rule established by precedent no longer gives a just result it must then be determined whether the rights of those who have justifiably relied upon the established precedents are of greater weight in this case than that the rule be corrected. The test is whether it is more important that the matter remain settled than that it be settled correctly. Brickhouse v. Hill, 167 Ark. 513, 522, 268 S.W. 865 (1925).

Id. at 1253, 429 S.W.2d 45.

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