ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

MARK ANTHONY HYATT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-869

March 21, 2001

APPEAL FROM THE CRAWFORD

COUNTY CIRCUIT COURT

[CR99-237A, CR99-238, CR99-292]

HONORABLE FLOYD G. ROGERS,

CIRCUIT JUDGE

AFFIRMED

On October 27, 1999, appellant, Mark Hyatt, pleaded nolo contendere to two counts of delivery of methamphetamine and twelve counts of theft of property. The judgment and commitment order was filed on November 4, 1999. With respect to each offense, it provided that the "sentence imposed" was for a period of 120 months, and that the "suspended imposition of sentence" was for a period of 120 months. The total time to be served on all offenses was designated as 120 months.

After sentencing, appellant was released from the county jail to await transportation to the Arkansas Department of Correction. On January 12, 2000, the State filed a petition to revoke, alleging that appellant had committed a new offense of theft of property in violation of the terms and conditions of his suspended sentence. A hearing was held on the petition on February 28, 2000, following which the trial court denied the petition and the original sentence remained intact. On March 8, 2000, the State filed another petition to revoke, alleging that appellant had committed new offenses of theft of property, and that he had tested positive for methamphetamine in violation of the terms and conditions of his suspended sentence. On April 20, 2000, appellant filed a motion to dismiss the petition. On April 24, 2000, a hearing was held on the March 8, 2000, petition to revoke. Following the hearing, the trial court determined that the second petition to revoke was not barred; that two distinct separate offenses were involved in the two petitions to revoke; and that appellant's suspended sentence should be revoked. The judgment and commitment order that was filed on May 3, 2000, following revocation, shows that appellant was to serve a total of 240 months. We affirm.

For his first point of appeal, appellant contends that the "issue herein is whether the State should have been prevented by collateral estoppel from subsequently retrying appellant on a Petition to Revoke his suspended sentence, based on a final determination or dismissal in an earlier hearing." We find no error.

In Hill v. State, 331 Ark. 312, 320, 962 S.W.2d 762, 766 (1998), our supreme court explained:

In Fletcher v. State, 318 Ark. 298, 884 S.W.2d 623 (1994), we acknowledged that the United States Supreme Court had accorded constitutional dimensions to collateral estoppel by incorporating it into the Fifth Amendment bar against double jeopardy. See Ashe v. Swenson, 397 U.S. 436 (1970). Collateral estoppel provides that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Edwards v. State, 328 Ark. 394, 943 S.W.2d 600 (1997). This court has required proof of the following elements in order to establish collateral estoppel: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) the issue must have beendetermined by a final and valid judgment; and (4) the determination must have been essential to the judgment. Id.

(Emphasis added.)

Appellant acknowledges that the specific theft incidents involved in the two petitions to revoke were different, i.e., theft of four-wheelers in the first and theft of construction materials in the second; however, he argues that "the shadow of an agreement for cooperation eclipses the circumstances in both incidents." In essence, he contends that the hearing on the first petition to revoke established that there was an agreement between him and the police officers that if he told them about "certain felonious behavior" in which he had engaged and gave them information that resulted in the return of certain property that he would not receive any more "time."

The first element that must be shown in establishing collateral estoppel is that the issue sought to be precluded must be the same as that involved in the prior litigation. Appellant does not satisfy even this first element. At the first revocation hearing on February 28, 2000, appellant testified that it was his understanding that he had an agreement with Officer Mike Allen that if he told them about the four wheelers and "went out and got them," there would not be any time added to his sentence. He stated that he brought the four wheelers back himself and that he also had an agreement with Officer Brent Grill that if he retrieved some other stolen property in Oklahoma, tandem axle trailers, they would let him stay out of jail until he went to the Arkansas Department of Correction. The trial court "gave appellant the benefit of the doubt" in that hearing, found "some grain of truthfulness about his testimony,"and dismissed the petition to revoke. The only stolen property mentioned in that hearing, about which there was even an alleged agreement between appellant and the officers, were the four-wheelers and some tandem axle trailers. There was no mention of the construction materials. Appellant's attempt to place his theft of the construction materials under "the shadow of an agreement for cooperation [that] eclipses the circumstances in both incidents" is simply not sufficient to satisfy the requirements for establishing collateral estoppel.

Moreover, in his brief appellant asserts that "all of the criminal behavior alleged to have occurred which was presented at both hearings, occurred prior to the filing of the first petition to revoke and obviously before the first hearing on the matter." The first petition to revoke was filed on January 12, 2000. It alleged a theft of property that occurred on or about December 31, 1999. That theft of property involved the four wheelers. A hearing on the first petition was held on February 28, 2000. The second petition to revoke was filed on March 8, 2000. It alleged, in part, a theft of property that occurred on January 18, 2000, after the filing of the first petition. That theft of property involved the construction materials and was the main focus of the hearing on the second petition. Thus, contrary to appellant's assertion in his brief, the date of the theft involving the construction materials was after the first petition was filed, even though it was prior to the hearing on the first petition, and as discussed previously evidence regarding the theft of construction materials was not presented at the first hearing.

For his second point of appeal, appellant contends that the trial court improperly revoked his suspended sentence because the suspended sentence had not yet commenced when the acts complained of had occurred. We find no error.

Appellant's argument is essentially based upon two sections of the Arkansas Code. Arkansas Code Annotated section 5-4-303(b) (Repl. 1997) provides:

The court shall provide as an express condition of every suspension or probation that the defendant not commit an offense punishable by imprisonment during the period of suspension or probation.

(Emphasis added.) Arkansas Code Annotated section 5-4-307(c) (Repl. 1997) provides:

If the court sentences the defendant to a term of imprisonment and suspends imposition of sentence as to an additional term of imprisonment, the period of the suspension commences to run on the day the defendant is lawfully set at liberty from the imprisonment.

(Emphasis added.) He argues that because Arkansas law establishes that a suspended sentence commences to run at the time the defendant is released from imprisonment and that because he had not been set at liberty to begin the suspended portion of his sentence, the offenses underlying his revocation did not occur "during the period of suspension" and, therefore, the trial court erred in revoking his sentence.

First, appellant did not make this argument to the trial court. Therefore, it is not preserved for appellate review. We do not consider arguments raised for the first time on appeal. Elliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000).

Moreover, even if we were to address this argument on its merits, we would find no basis for reversal because the argument was rejected in Venable v. State, 27 Ark. App. 289,770 S.W.2d 170 (1989), under circumstances very similar to those presented here. In Venable, the trial court sentenced appellant "to fifteen years in the Department of Correction, but suspended five years, conditioned . . . upon [him] not committing an offense punishable by imprisonment." He was remanded to the custody of the sheriff for transportation to the department. While waiting to be transported to the Department of Correction, the appellant was released from the county jail for five days to take care of personal business. During that furlough, he committed an offense that served as the basis for revoking his suspended sentence. On appeal, he made the argument presented by appellant in the instant case. We rejected the argument, citing the policy rationales offered by courts from other jurisdictions. For example, we quoted the Fifth Circuit Court of Appeals' decision in United States v. Ross, 503 F.2d 940 (1974), where that court explained:

Sound policy requires that courts should be able to revoke probation for a defendant's offense committed before the sentence commences; an immediate return to criminal activity is more reprehensible than one which occurs at a later date.

Venable v. State, 27 Ark. App. at 292, 770 S.W.2d at 171.

Although we did not specifically articulate our interpretation of the language of Arkansas Code Annotated section 5-4-307(c) in Venable, it is clear that this statute was enacted to establish a beginning date for the period of a suspended sentence so that the ending date, upon which a trial court loses jurisdiction to revoke a suspended sentence and to impose additional time, can be definitively determined. It was not intended to give a convicted felon immunity from the revocation of a suspended sentence during a pre-confinement furlough. Such an interpretation would be nonsensical for all of the policy considerations articulated in Venable.

Affirmed.

Jennings and Neal, JJ., agree.