ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION IV

ROBERT A. PETERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-203

June 25, 2003

APPEAL FROM THE ST. FRANCIS COUNTY CIRCUIT COURT

[NO. CR95-128]

HONORABLE HARVEY YATES,

CIRCUIT JUDGE

REBRIEFING ORDERED

In a judgment and commitment order filed November 19, 1998, appellant, Robert A. Peters, was sentenced to 240 months' imprisonment following revocation of either his probation or his suspended imposition of sentence. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j) (2003), appellant's counsel seeks to be relieved as counsel, alleging that this appeal is wholly without merit. We order rebriefing.

On September 18, 2002, we previously ordered rebriefing in an unpublished decision, and we advised counsel for appellant to brief various issues, including two jurisdictional issues regarding (1) the propriety of ordering appellant in 1996 to both probation and a suspended imposition of sentence, and (2) "the effect of a prior revocation of his original sentence by a judgment entered on April 1, 1998." In counsel's new brief, however, counsel failed to address the second issue.

Based on our review of the relevant case law, we conclude that an appeal would not

be wholly frivolous. Consequently, we order counsel to present an adversarial argument on all jurisdictional issues. See Tucker v. State, 47 Ark. App. 96, 885 S.W.2d 904 (1994) (denying counsel's motion to withdraw and ordering counsel to provide the court with an adversarial presentation of an issue where the appeal was not "wholly frivolous").

Because of the apparent difficulty counsel had in gleaning our intent from our previous opinion, we ask counsel to consider in the next brief several pertinent facts. In a judgment and disposition order filed October 1, 1996, appellant was placed on probation for twenty-four months and suspended imposition of sentence for sixty months. The "conditions of suspension" indicated that "[d]uring the term of this suspension," appellant would be on two years of supervised probation and that the five-year suspension period would end on August 26, 2001. Next, in a judgment and disposition order filed April 1, 1998, the court revoked appellant's probation or suspended imposition of sentence, ordered him to serve a period of confinement for four months, extended the probationary period to August 26, 2000, extended the period of the suspended imposition of sentence to August 26, 2006, and ordered payment of probation fees of $25 each month and forty hours of community service. The "extended" conditions of suspension provided that the term of suspension would be five "additional" years to end on August 26, 2006, and that "[d]uring the term of the suspension," he would be on two "additional" years of supervised probation to end on August 26, 2000. In a judgment and commitment order filed November 19, 1998, the court revoked the probation or suspended imposition of sentence and sentenced appellant to twenty years' imprisonment.

We also note that according to the initial judgment and disposition order, the date of appellant's offense was May 18, 1994, and consequently, we apply the law in effect prior to the passage of Act 1569 of 1999, which was not retroactively applied. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001). And we remind counsel that once a judgment of conviction has been entered, the sentence has been put into execution, and a circuit court cannot modify or amend a defendant's original sentence in a later proceeding because it has lost jurisdiction to do so. Gates v. State, ___ Ark. ___, ___ S.W.3d ___ (May 22, 2003).

We ask counsel to, at a minimum, address the effect of the judgment and disposition order filed October 1, 1996, the judgment and disposition order filed April 1, 1998, and the judgment and commitment order filed November 19, 1998. Particularly, counsel should consider whether the sentence to imprisonment on April 1, 1998, was a modification of the conditions of either appellant's probation or suspended imposition of sentence of October 1, 1996, or, alternatively, whether the sentence to imprisonment on April 1, 1998, resulted in the entry of a judgment of conviction. Also, counsel should examine whether the court had jurisdiction to sentence appellant to imprisonment on November 19, 1998, if appellant's sentence was placed into execution on April 1, 1998. We suggest that counsel review relevant statutory law in effect prior to the passage of Act 1569 of 1999, such as Ark. Code Ann. § 5-4-104(e)(3) (Repl. 1997); Ark. Code Ann. § 5-4-301(d)(2) (Repl. 1997); Ark. Code Ann. § 5-4-303(c)(10) (Repl. 1997); Ark. Code Ann. § 5-4-304 (Repl. 1997); Ark. Code Ann. § 5-4-306(b) (Repl. 1997); and Ark. Code Ann. § 5-4-309(f) (Repl. 1997). We likewise suggest that counsel examine any relevant case law, such as Gates, supra; Pike v.State, 344 Ark. 478, 40 S.W.3d 795 (2001); Bagwell, supra; McGhee v.State, 334 Ark. 543, 975 S.W.2d 834 (1998); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002); Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002); and Palmer v. State, 31 Ark. App. 97, 788 S.W.2d 248 (1990). Finally, counsel should also address whether the circuit court could properly order both probation and a suspended imposition of sentence on October 1, 1996, and on April 1, 1998, or properly extended the periods of probation and suspended imposition of sentence on April 1, 1998. Counsel should review any relevant case law, such as Gates, supra; Harness v. State, ___ Ark. ___, 101 S.W.3d 235 (2003); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); and Jones v. State, 54 Ark. App. 150, 924 S.W.2d 470 (1996).

Rebriefing ordered.

Pittman and Robbins, JJ., agree.