ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

DOUGLAS MOTEN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-788

February 28, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[CR94-965, CR95-793B]

HONORABLE DAVID BURNETT,

CIRCUIT JUDGE

AFFIRMED

On June 16, 1995, Douglas Moten pleaded guilty to possession of cocaine (CR-94-965) and was placed on ten years' probation, subject to certain terms and conditions. He pleaded guilty on April 29, 1996, to possession of a controlled substance (CR-95-793B), and the trial judge suspended imposition of his sentence for a period of ten years, subject to certain terms and conditions. In January 2000, the State filed a petition to revoke both Moten's probation and his suspended sentence. After a hearing, the trial court revoked both the probated sentence and the suspended sentence and ordered Moten to serve ten years in the Arkansas Department of Correction on each count, with the sentences to run concurrently. On appeal, Moten does not argue that there was insufficient evidence to revoke his probation and his suspended sentence, and he takes no issue with the sentence pronounced upon the revocation of his probation in CR-94-965. His sole point on appeal is that the trial judge erred in sentencing him to ten years for violation of the suspended sentence in CR-95-793B because he only had the authority to revoke the balance of the ten-year term. We affirm.

In support of his argument, Moten cites Lewis v. State, 62 Ark. App. 150, 970 S.W.2d 299 (1998), and Lyons v. State, 35 Ark. App. 29, 813 S.W.2d 262 (1991). However, Lewis was reversed by our supreme court in Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999), and Lyons is distinguishable from appellant's case.

In Lyons, the appellant pleaded guilty to battery in the second degree on June 16, 1989, and was sentenced to five years in the Arkansas Department of Correction with four and one-half years suspended. On March 9, 1990, the trial court revoked the suspended sentence and ordered Lyons to serve four and one-half years in the Arkansas Department of Correction, with three and one-half years suspended. On appeal, this court held that because the trial court's sentence had actually been imposed, Lyons could not be required to serve more than the remainder of his sentence upon revocation of his suspended sentence, and we remanded the case to the trial court for determination of the proper sentence to impose.

We find the instant case is analogous to Shavers v. State, 66 Ark. App. 173, 176, 991 S.W.2d 622, 623 (1999), in which we held:

Judgments are generally construed like other instruments; the determinative factor is the intention of the court, gathered from the judgment itself and the record, including the pleadings and the evidence. In the case at bar, the 1995

order indicated that imposition of the sentence was suspended - not that execution of the sentence was suspended, and that the suspension was conditioned upon appellant's compliance with certain terms. Here . . . the trial court's usage of the language suspended imposition of sentence reveals that the trial court intended no sentence to be entered, and showed only that appellant was required to comply with the conditions of his suspended sentence. . . . Thus, we conclude that it was the intention of the trial court to suspend imposition of appellant's sentence, not impose an actual sentence.

In the case at bar, unlike Lyons, appellant's sentence was never imposed, but rather the trial judge suspended imposition of the sentence based upon appellant fulfilling certain conditions. The judgment and commitment order clearly states that imposition of appellant's sentence was suspended for ten years, subject to certain terms and conditions. Because the trial court never imposed a sentence upon appellant, but rather suspended imposition of the sentence, upon revocation of such suspended sentence, it was authorized under Ark. Code Ann. § 5-4-309 (f)(1)(A) (Supp. 1999) to enter a judgment of conviction and to impose any sentence on appellant that might have been imposed originally for the offense of which he was found guilty. Appellant's underlying offense was possession of a controlled substance, a Class C felony. For a Class C felony, the sentence shall be not less than three (3) years nor more than ten (10) years, Ark. Code Ann. § 5-4-401(a)(4) (Repl. 1997); therefore, the trial court committed no error in sentencing appellant to ten years upon revocation of his suspended sentence.

Affirmed.

Bird and Vaught, JJ., agree.