ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION III

DONALD BILES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-00098

JANUARY 16, 2002

APPEAL FROM THE BOONE COUNTY CIRCUIT COURT

[NO. CR1999-53]

HONORABLE ROBERT MCCORKINDALE II, CIRCUIT JUDGE

AFFIRMED

Appellant, Donald Biles, appeals from an amended judgment and commitment order that required that his sentence received in Boone County Circuit Court be served consecutively with his previous Benton County sentence. His sole point on appeal is that the judgment ordering his sentence to be served consecutively to his Benton County sentence is illegal pursuant to Arkansas Code Annotated section 5-4-403 (Repl. 1997). We affirm.

Appellant received sentences from the Benton County Circuit Court in cases CR 2000-275-2, CR 99-293-2, CR 98-789-2, and CR 98-205-2. On April 30, 1999, appellant pled guilty in Boone County to theft of property, a Class A misdemeanor; altering a vehicle identification number, a Class A misdemeanor; and theft by receiving, a Class B felony. Appellant received a ten-year suspended sentence for these convictions. On June 23, 1999, a petition to revoke appellant's suspended sentence was filed because he violated the terms of his suspended sentence. An amended petition to revoke was filed on September 13, 2000, due to new charges filed against appellant.

On September 29, 2000, appellant was found guilty in Boone County of the charges in the

amended petition to revoke, theft of property, a Class A misdemeanor; altering a vehicle VIN number, a Class A misdemeanor; and theft by receiving, a Class B felony. The trial court found that appellant had willfully violated the terms and conditions of his suspended sentence. Appellant was sentenced to twelve months for the misdemeanor theft by receiving; twelve months for altering a vehicle VIN number; and 120 months for theft by receiving, totaling ten years' imprisonment. The order, filed October 6, 2000, stated that appellant's Boone County sentences were to run concurrently, but the Boone County sentences would run consecutively with the Benton County sentence.

Appellant filed a timely notice of appeal on November 2, 2000. Subsequently, appellant's counsel filed a motion to withdraw as counsel on the ground that this appeal is wholly without merit. The motion was accompanied by a brief, in which appellant's counsel failed to abstract any adverse rulings against appellant made at trial according to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Supreme Court and the Court of Appeals. Instead, appellant's brief argues that there is a meritorious issue on appeal. We hold that the brief was not in compliance with Anders or Rule 4-3(j) of the Rules of the Supreme Court and the Court of Appeals and address the argument presented in appellant's brief.

The question of whether sentences should run consecutively or concurrently lies solely within the province of the trial court. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997) (citing Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996)). We will, however, remand for resentencing when it is apparent that the trial court did not exercise its discretion. Id. (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)).

Appellant argues that the trial court erred when it entered the judgment and commitment order stating that his Boone County sentences were to be served consecutively with his BentonCounty sentence, in violation of Arkansas Code Annotated section 5-4-403 (Repl. 1997). We disagree. Section 5-4-403 provides that,

(a) When multiple sentences of imprisonment are imposed on a defendant convicted of more than one (1) offense, including an offense for which a previous suspension or probation has been revoked, the sentences shall run concurrently unless the court orders the sentences to run consecutively.

(b) When a sentence of imprisonment is imposed on a defendant who has previously been sentenced to imprisonment, whether by a court of this state, a court of another state, or a federal court, the subsequent sentence shall run concurrently with any undischarged portion of the previous sentence unless the court imposing the subsequent sentence orders it to run consecutively with the previous sentence.

At the conclusion of the hearing, the trial judge stated that "The court finds that the

[appellant] has willfully violated the terms and conditions of his suspended sentence, and that ten year sentence will be revoked. He'll be sentenced to the [Arkansas] Department of Correction for a period of ten years." Although, the trial judge did not articulate on the day of the hearing whether the sentences were to run concurrently or consecutively with appellant's Benton County sentence, the judgment and commitment order entered on October 4, 2000, and the amended judgment and commitment order entered on October 6, 2000, both stated that the Boone County sentences were to run concurrently with one another, but consecutively with the Benton County sentence.1

Appellant cites Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995), in support of his argument that in the absence of an order that subsequent sentences are to be served consecutively, said sentences are to run concurrently. However, Hadley is easily distinguished from this case. In Hadley, the trial court amended the judgment to reflect a consecutive rather than concurrent sentence after the sentence had been put into execution. A sentence is placed into execution when the courtissues a commitment order. Swopes/Muhammad v. State, 338 Ark. 217, 992 S.W.2d 109 (1999). Once a valid sentence has been put into execution, the trial judge is without jurisdiction to modify, amend, or revise it. Webb v. State, 66 Ark. App. 367, 990 S.W.2d 591 (1999). Here, prior to the entry of the judgment and commitment order, which articulated that the sentences were to run consecutively with the Benton County sentence, the sentences had not been put into execution. We hold that the trial judge properly exercised his discretion by establishing in the judgment and commitment order the manner in which appellant's sentences were to be carried out.

Bird and Crabtree, JJ., agree.

1 The original judgment and commitment order contained a clerical error in that it stated that theft by receiving was a Class B misdemeanor. The amended judgment and commitment order corrected the error and provided that theft by receiving was a Class B felony.