Moseley v. State

• Decision Date: 05 July 2002
• Docket Number: No. CR 01-1427.,CR 01-1427.
• Parties: Michael Dee MOSELEY v. STATE of Arkansas.
• Court: Arkansas Supreme Court

Page 325

80 S.W.3d 325

349 Ark. 589

Michael Dee MOSELEY v. STATE of Arkansas.

No. CR 01-1427.

Supreme Court of Arkansas.

July 5, 2002.

Steven R. Jackson, Fayetteville, for appellant.

Mark Pryor, Att'y Gen., by: Valerie L. Kelly, Ass't Att'y Gen., Little Rock, for appellee.

ROBERT L. BROWN, Justice.

Appellant Michael Dee Moseley appeals the judgment of the Benton County Circuit Court revoking his probation and sentencing him to a term of imprisonment of six years. For his sole issue on appeal, Moseley contends that the trial court erred in failing to dismiss the State's petition to revoke for lack of subject-matter jurisdiction. Specifically, he asserts (1) that Act 1569 of 1999 did not overrule this court's caselaw that a trial court cannot revoke a person's probation twice or modify or add additional terms to the probation, once the sentence has been placed into execution and (2) that Act 1569 of 1999 allows a trial court to add a period of confinement after probation revocation only if no period of confinement was included in the original order. We hold that the trial court had jurisdiction to revoke Moseley's probation following the State's second petition to revoke, and to sentence him to prison. We affirm the trial court.

On June 22, 1999, Moseley was arrested for the rape of JD, a minor. On August 11, 1999, Moseley was charged with incest, and on January 25, 2000, he pled guilty to sexual solicitation of a minor and false imprisonment in the second degree. He was sentenced to ninety days in the county jail, with ninety days credit given for time already served, and six years of supervised probation under Act 346 as a first-time offender. His probation was also conditioned on paying fees and costs: court costs of $150.00, a child and sex offender fund, fee of $250.00, a DNA fund fee of $250.00, and a public defender fee of $350.00. The plea agreement and order also provided that Moseley was to participate in a sex offender treatment program, a domestic abuse intervention program, and parenting classes. In addition, he was to have no unsupervised contact with the victim or other minor children in the household unless otherwise ordered by the trial court.

On February 11, 2000, the State filed a petition to revoke Moseley's probation. In that petition, the State alleged that Moseley had reported to the probation office in the unsupervised company of a minor, that he had admitted to unsupervised contact with the victim, JD, and that he had failed to comply satisfactorily with the sex-offender treatment program in that he had only attended two of eight sessions. On March 1, 2000, the trial court entered a revocation order in which it continued the probation and found Moseley in contempt for violation of its original order. The trial court sentenced him to thirty days in the county jail for contempt with nineteen days' credit and placed him on intensive supervision for three months. The trial court also extended his period of probation an additional two months, ordered him to pay the fees and costs, and further ordered that a residential plan be prepared to ensure "no contact with minors." The plan was later devised by Moseley's wife, Judy, and filed with the trial court on March 9, 2000.

On April 24, 2001, the State filed a second petition to revoke Moseley's probation. In this petition, the State alleged that Moseley had committed the offenses of driving while intoxicated, criminal mischief, no driver's license, disorderly conduct, implied consent, endangering the welfare of a minor, and child passenger protection. Further, the State claimed that Moseley had been in the unsupervised company of a minor and had consumed excessive alcohol in violation of the court's order and his probation agreement. Attached to the State's petition was the affidavit of Mark Bernthal, Moseley's probation officer, in which he stated that according to a police report, Moseley "had his 5 year old son, who was injured, in his lap while driving." Moseley had struck a rock disabling his vehicle. He was intoxicated, according to the affidavit, and became very combative and belligerent when taken into custody.

On June 18, 2001, a hearing was held on the State's second revocation petition. At the hearing, Moseley presented a motion to dismiss, arguing that because he was sentenced to jail time for contempt in the prior revocation order, the trial court lost jurisdiction over him under this court's case law. The court took the motion under advisement. On June 20, 2001, Moseley filed his written motion and brief-insupport reiterating his prior argument that the court had lost jurisdiction of his case. On June 22, 2001, the court held a second hearing on the State's petition. The court denied Moseley's motion to dismiss, and said that in the prior revocation hearing of February 28, 2000, the court had specifically continued Moseley's probation and "put him in jail for contempt of Court for violation of the Court's orders, and that was done without objection. There was no execution of sentence at all." The trial court further noted that Moseley's Act 346 status was still in effect.

The trial court then heard from the State's witnesses in support of the petition. At the conclusion of the hearing, the trial court noted that the standard of proof was preponderance of the evidence, but that the court was satisfied beyond a reasonable doubt that Moseley had violated his probation by driving while intoxicated, endangering the welfare of a minor, and being in the presence of a minor without supervision. The court revoked Moseley's probation and sentenced him to six years in the Department of Correction. It further ordered him to pay the balance of his fines and costs of $535 at a rate of $50 per month plus a $5 monthly collection fee, beginning sixty days after his release. The court noted that Moseley had ninety days of jail time credit and ordered him to complete a drug and substance abuse treatment program. A revocation order to that effect was entered that same day, and on July 18, 2001, the court entered its judgment and commitment order.

Moseley claims in this appeal that after the initial probation revocation order of March 1, 2000, and the sentence to jail for contempt, the trial court lost jurisdiction over his case and, therefore, did not have jurisdiction to rule on the State's second petition for revocation. In making this claim, Moseley relies on this court's prior caselaw which held that a trial court cannot modify or add additional terms to a defendant's probation once the sentence has been placed into execution. He cites this court to Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); and Harwoo. v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). He further contends that while the General Assembly attempted to overturn this court's decisions by Act 1569 of 1999, the legislative attempt does not affect his case or change this court's caselaw that once a defendant's sentence has been placed into execution, the trial court loses jurisdiction over that defendant. He argues that under Arkansas Code Annotated § 5-4-303(f), a trial court can only act in "limited situations when a defendant continues on a period of suspension of imposition of sentence or a period of probation." He concludes that because the trial court lost jurisdiction over him when his sentence was executed, the court was without jurisdiction to modify that sentence following the second probation hearing in 2001.

The State responds that the law changed with Act 1569 of 1999, which empowered trial courts to use intermediate sanctions in probation revocations and to modify original sentences where appropriate. The State points out that the legislature specifically declared its intention to allow the use of sanctions formerly deemed impermissible in McGhee v. State, supra and further asserts that reading Act 1569 in the manner Moseley claims would be contrary to the legislative intent expressed in the Act's emergency clause.

We turn then to an analysis of Act 1569 of 1999. Prior to Act 1569, our caselaw stood for the proposition that a trial court lost jurisdiction to modify or amend an original sentence once that sentence was pot into execution. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001) (citing Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989) (citing Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1988); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987))). In 1999, however, the General Assembly enacted Act 1569 which amended Arkansas Code Annotated §§ 5-4-301, 5-4-303, 5-4-304, and 5-4-306. See Act 1569, of 1999. Act 1569 went into effect on April 15, 1999, and this court subsequently held that it was to only be applied prospectively. See Bagwell v. State, supra. In order for Act 1569 to apply to the facts of Moseley's case, it had to have been in effect at the time the original crime was committed. See id. Here, Moseley's offenses occurred between May 1, 1999, and June 22, 1999, which was after the effective date of Act 1569. Accordingly, Act 1569 applies to the facts of his case.

Act 1569 amended Ark.Code Ann. § 5-4-301(d) to add a new subsection (d)(2):

(d)(1) When the court suspends the imposition of sentence on a defendant or places him on probation, the court shall enter a judgment of conviction only if:

(A) It sentences the defendant to pay a fine and suspends imposition of sentence as to imprisonment or places the defendant on probation; or

(B) It sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment.

(2) The entry of a judgment of conviction shall not preclude:

(A) The modification of the original order suspending the imposition of sentence on a defendant or placing a defendant on probation...