ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

CHRISTOPHER THRONEBURY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-974

JUNE 25, 2003

APPEAL FROM THE JOHNSON

COUNTY CIRCUIT COURT

[NO. CR-98-24c]

HONORABLE JOHN S. PATTERSON,

JUDGE

REBRIEFING ORDERED

Appellant Christopher Thronebury appeals the revocation of his probation as entered by the Johnson County Circuit Court for which he was sentenced to one year in prison to be followed by the suspended imposition of any additional sentence for a period of three years. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Thronebury's counsel has filed a motion to withdraw on the grounds that the appeal of this case is without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Thronebury was provided with a copy of his counsel's brief and notified of his right to file a list of points for reversal within thirty days; he filed no points. As a consequence, the State Attorney General declined to file a brief. After our

review of the record and the brief presented, we conclude that an argument regarding the legality of the two revocation proceedings and the resulting sentence would not be wholly without merit. Therefore, we order rebriefing for counsel to present an adversarial brief on this issue. We make no determination as to the rulings arising from the revocation hearing that were adverse to appellant.

The evidence leading up to revocation is as follows. Appellant was placed on five years of probation on May 18, 1998, for multiple counts of breaking or entering and for multiple counts of theft of property. The conditions of probation included that he pay $1000 in fines and $150 in court costs, that he pay $2064 in victim restitution, that he pay a monthly probation fee, that he submit to random drug tests, and that he lead a law-abiding life and not commit an offense punishable by imprisonment. The State filed a petition to revoke on June 12, 2001, based upon failure to make scheduled payments, failure to pass drug testing, and failure to report to his probation officer. The trial court denied the first revocation petition but ordered appellant to pay $1000 to become current on payments owed and to complete an in-patient drug rehabilitation program.

The State filed a second petition to revoke his probation on March 15, 2002, based upon five positive drug-test results and confession of marijuana use since July 2001. At the May 2002 revocation hearing, appellant's probation officer testified that appellant had either admitted to using marijuana or tested positive for marijuana numerous times since his last probation revocation hearing. The probation officer stated that appellant was also $120 behind in payments. Appellant admitted that he had a problem ending a marijuana habit andagreed that he was $120 behind in his payments. Appellant said that he unsuccessfully tried twice to complete the in-patient drug rehabilitation, but he gave explanations why those failed attempts were not his fault. The trial judge concluded that appellant clearly violated the terms of his probation by using illegal drugs and that he would receive treatment while incarcerated at the Arkansas Department of Correction or at the Regional Correction Facility. The trial judge sentenced appellant to be imprisoned for one year, followed by three years of suspended imposition of sentence on each of the thirteen counts to which he pleaded guilty. This appeal followed.

While no objection to the legality of the first or second petition to revoke was ever raised at the trial level, we treat issues of void or illegal sentences similar to problems of subject-matter jurisdiction and review them even if not raised on appeal and not objected to in the trial court. Gates v. State, __ Ark. __, __ S.W.3d __ (May 22, 2003); Harness v. State, __ Ark. __, __ S.W.3d __ (March 20, 2003); but see Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995). Appellant's probation was entered prior to Act 1569 of 1999, which amended Ark. Code Ann. § 5-4-301(d) to permit modifications to probated sentences that are placed into execution. Appellant's probation was controlled by the law in effect at the time of the crimes for which he pleaded guilty and not the 1999 Act. See Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002); Meadows v. State, 320 Ark. 686, 899 S.W.2d 72 (1995). Appellant's probation constituted a conviction because in 1998 he pleaded guilty, was given probation, and was ordered to pay a fine. See Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). Once a sentence is placed into execution, the trial court is deprived ofjurisdiction to amend or modify it. See id.

After the State moved to revoke his probation the first time, appellant's probation was modified to require that appellant (1) pay $1000 to become current, and (2) complete an in-patient rehabilitation program. Probation may be revoked, but it may not be modified. See, e.g., Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002). We do not address whether appellant was prejudiced by this modification, though appellant was not alleged to have violated these added conditions in the second petition to revoke. See Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992).

Upon the second revocation petition that was granted, the trial court sentenced appellant to a one-year term of imprisonment to be followed by three years of suspended imposition of sentence on each of the multiple counts of theft and breaking or entering. Arkansas Code Annotated section 5-4-309(f)(1)(A) (Supp. 1999) provides that upon revocation, the trial court may impose any sentence on the defendant that might have been imposed originally for the offense for which he was found guilty, and Ark. Code Ann. § 5-4-104(e)(3) (Repl. 1997) provides that "the court may sentence the defendant to a term of imprisonment and suspend imposition of sentence as to an additional term of imprisonment." However, the supreme court's decision in Gates v. State, supra, would permit an argument to be made that suspension following imprisonment, in the context of revocation, is an illegal modification.

We are duty-bound to perform a full examination of all the proceedings to decide if an appeal is wholly frivolous. See Anders v. California, supra. Given the uncertainty thatremains between Arkansas case law and statutory law, we believe that an appeal in this case is not wholly frivolous. Counsel's motion to be relieved is denied, and we order rebriefing for counsel to prepare a brief in adversarial form to address the legality of modification of the conditions of probation and the legality of the second revocation that resulted in this appeal.

Rebriefing ordered.

Pittman and Hart, JJ., agree.