NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE ANDREE LAYTON ROAF

DIVISION III

CACR 01-1421

October 2, 2002

SAMUEL GENE WOFFORD APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

[CR95-3047; CR00-1655]

v.

HON. JOHN BERTRAN PLEGGE

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED IN PART; REVERSED AND DISMISSED IN PART

Samuel Gene Wofford appeals from both a conviction and probation revocation. Wofford was found guilty after a bench trial of possession with intent to manufacture (methamphetamine) and was sentenced to four years' imprisonment. Wofford's probation from a prior conviction was revoked immediately following the bench trial and he was sentenced to four years' imprisonment on the prior conviction, to run concurrently with the four-year sentence on the new conviction. On appeal of the conviction, Wofford argues that the trial court erred in denying his motion to suppress because the arresting officer lacked reasonable suspicion to make a stop of the vehicle Wofford was driving. Wofford also challenges the revocation on the ground that the trial court lacked jurisdiction to revoke his probation. We affirm as to the conviction, but reverse and dismiss as to the revocation of probation.

On March 14, 2000, Little Rock Police Officer Teresa Russell was on patrol near Chicot Road in Little Rock. She was traveling behind a 1978 blue Oldsmobile Cutlass, ran the tags on it and received notice that an active warrant was associated with the vehicle. The warrant was for Samuel Wofford. Officer Russell then stopped the vehicle and made contact with the driver. The driver was Samuel Wofford. Wofford had one passenger, Timothy Hickman. After verifying Wofford's identity as that of the person subject to the outstanding warrant, Officer Russell placed Wofford under arrest. Officer Steve Graves arrived on the scene to assist Russell. As Graves approached the passenger side of the vehicle, he observed Hickman place what appeared to be a plastic bag containing green leafy matter in his right pocket and use his legs to shove other plastic bags under his seat. Graves removed Hickman from the car, retrieved the substance from Hickman's pocket and placed him under arrest. An inventory search was then conducted on the vehicle as the car was going to be towed for no proof of insurance, and the bags that Hickman had placed under his seat were found. One of the bags contained what appeared to be marijuana, while others contained a total of twenty-four bottles of pseudoephedrine.

Wofford was charged with possession of pseudoephedrine with intent to manufacture (methamphetamine). A bench trial was held on the charge on September 10, 2001. The State had also filed a petition to revoke Wofford's probation from an earlier conviction as a result of the new charge pending against him. On April 13, 2001, defense counsel filed a motion to suppress evidence seized during the traffic stop on the grounds that Officer Russell lacked reasonable suspicion to stop the vehicle. The court withheld ruling on the motion until the conclusion of the trial.

At trial, Officer Russell testified that she was patrolling on the night of March 14, 2000, and was following a blue Oldsmobile Cutlass. She stated that when she ran the tags on the vehicle, an active warrant appeared for Samuel Wofford. Russell further stated that when a vehicle's tags are scanned into the computer in the patrol units, any information related to the vehicle will show up,including active warrants associated with the vehicle, general information on the vehicle, and whether the vehicle has been reported stolen. Once a search of the vehicle's tags showed an active warrant associated with the vehicle, Russell initiated the stop. Russell then testified that she made contact with the driver, Samuel Wofford, and verified the information on his driver's license with the information provided on the active warrant. Once she confirmed Wofford's identity, she took Wofford into custody.

Officer Steve Graves also testified at trial. Graves testified that he arrived at the scene to assist Officer Russell in the stop. He stated that he observed the passenger, Timothy Hickman, place a green leafy substance in one of his pockets while still sitting in the car and also observed Hickman kick several white bags under the seat. Graves stated that he then retrieved the substance from Hickman's pocket and, believing it to be marijuana, took Hickman into custody and placed him in his patrol car. Graves then returned to the car and retrieved the bags that Hickman kicked under his seat. Graves stated that one of the bags contained what appeared to be marijuana, along with drug paraphernalia, while two other bags contained bottles of pills that he suspected were pseudoephedrine.

Lastly, the State called Officer Ken Blankenship. Blankenship testified that he received the evidence seized by Russell and Graves and that he sent the evidence to the State Crime Lab for analysis. He further testified that the results of the lab tests were that the pills found in the bags under Hickman's seat were pseudoephedrine, each containing about sixty milligrams. When the State sought to introduce the items seized from the search of the vehicle, defense counsel objected, noting the unresolved motion to suppress. The trial court denied the motion and the items were admitted into evidence.

In his case-in-chief, Wofford called his mother, Christine Casey. She testified that she was the registered owner of the vehicle and that she allows Wofford to drive the car regularly. Thedefense then rested its case and renewed its motion to suppress, which was again denied.

At the conclusion of the trial, the court found Wofford guilty of possession with intent to manufacture and then granted the State's petition to revoke Wofford's probation after Wofford stipulated that he had been placed on probation and given specific conditions of compliance. Wofford's sole point on appeal from his conviction is that the trial court erred in denying his motion to suppress because the arresting officer lacked reasonable suspicion to make the stop. In reviewing a trial court's denial of a motion to suppress, appellate courts will make an independent determination based on the totality of the circumstances and will reverse only when the trial court's denial is clearly against the preponderance of the evidence. Lamb v. State, 77 Ark. App. 54, 70 S.W.3d 397 (2002).

Wofford contends that Officer Russell lacked reasonable suspicion to stop the vehicle because the only information known to her when she initiated the stop was that a check of the vehicle's license plate number revealed an active warrant for Samuel Wofford. He contends that Russell did not know who the registered owner of the vehicle was, or even if Wofford was in the car at the time she initiated the stop. He further contends that Officer Russell's suspicion that Wofford was operating the vehicle at the time was "merely a conjectural suspicion" as there was no way Russell could have known he was in the vehicle. The State responds by arguing that Officer Russell did have reasonable suspicion to initiate the stop, and that the active warrant on Wofford by itself provided the reasonable suspicion. The State also argues that Russell was authorized to stop Wofford pursuant to Ark. R. Crim. P. Rule 4.2, which provides that any law enforcement officer may arrest a person pursuant to a warrant in any county in the state.

An articulable or reasonable suspicion requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002). A "reasonable suspicion" is a suspicion based upon facts or circumstances that ofthemselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion, that is suspicion that is reasonable as opposed to imaginary or purely conjectural suspicion. Id.; Ark. R. Crim. P. 2.1

We agree with the State that Officer Russell's decision to initiate the stop of the vehicle was based upon reasonable suspicion. Russell's check on the license plate number revealed an active warrant outstanding for Samuel Wofford. Whether or not Wofford was the registered owner of the vehicle is of no consequence as it was reasonable for Russell to suspect that Wofford was associated with the vehicle since his active warrant was linked to this vehicle.

Wofford also argues that the trial court erred in revoking his probation from his 1996 guilty plea and conviction because it lacked the jurisdiction to do so. The State concedes that the trial court lacked jurisdiction to revoke probation, but under a different theory than that put forth by Wofford. Wofford claims that the trial court lacked jurisdiction to revoke his probation during an earlier revocation proceeding held in 1999 and consequently lacked jurisdiction to grant the second revocation. The State concedes that the trial court lacked jurisdiction to revoke Wofford's probation a second time in 2001.

Wofford pled guilty to First-Degree Sexual Abuse on September 6, 1996. He was sentenced to five years probation and given a fine. On June 2, 1999, the trial court granted the State's first petition to revoke Wofford's probation, and he was again placed on probation for five years and given an additional fine. Thus, the revocation at issue in this appeal resulted from the State's second petition to revoke the 1996 conviction.

In McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), the supreme court was asked to overrule Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), which held that a guilty plea, coupled with a fine and a suspended imposition of sentence constitutes a conviction that deprives the trial court of jurisdiction to amend or modify a sentence which has been executed. McGhee hadpled guilty to two counts each of breaking and entering and theft of property and was placed on thirty-six months' probation and ordered to pay a fine of $250. His probation was revoked, and he was sentenced to sixty days' imprisonment. After serving his imprisonment, the State filed a second petition to revoke based on new allegations. The trial court denied McGhee's motion to dismiss and sentenced him on all four charges. On appeal, our supreme court reiterated that a trial court loses jurisdiction to amend or modify an original sentence once a valid execution is put into place, and the sentence to pay a fine is put into execution when the judgment of conviction is entered. McGhee, supra. The supreme court refused to overrule the holding in Harmon.

The State points out, correctly, that Wofford's argument is flawed as McGhee and Harmon are not applicable to the first probation revocation. Arkansas Code Annotated § 5-4-309(f) (Repl. 1997), which was in effect at the time, provided that if a court revokes probation, it may impose any sentence on the defendant that might have been imposed originally for the offense. Therefore, the trial court had authority to revoke Wofford's probation the first time. However, as the State concedes, the trial court lacked jurisdiction to revoke Wofford's probation a second time. The second probationary period and additional fine imposed in the 1999 revocation was an executed sentence which cannot be modified or amended under the holding in McGhee. Consequently, we agree that the trial court lacked jurisdiction to revoke Wofford's probation, and reverse and dismiss the revocation.

Affirmed as to the conviction; reversed and dismissed as to the revocation of probation.

Neal and Vaught, JJ., agree.