ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CACR02-935

DIVISION I

January 14, 2004

TORRIZELL STEVENSON

APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

NO. CR 2000-106

V.

HONORABLE JOHN LANGSTON

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE AFFIRMED

Andree Layton Roaf, Judge

This is a no-merit appeal from a revocation of probation proceeding. Appellant, Torrizell Stevenson, pled guilty to theft by receiving on June 26, 2000. He was sentenced to four years' probation, fined $250 plus court costs, and ordered to serve sixty days in the Pulaski County jail with credit for fourteen days time served. On December 14, 2001, Stevenson was arrested for breaking and entering into a parked vehicle. The State filed a petition to revoke Stevenson's probation, alleging that Stevenson's arrest for the breaking and entering charge violated the terms and conditions of his probation. The circuit court found that Stevenson had violated the terms and conditions of his probation, his probation was revoked, and he was sentenced to 36 months in the Arkansas Department of Correction.

Stevenson's counsel previously filed a motion to withdraw as counsel pursuant to Anders v. California, 368 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, asserting that there was no merit to an appeal; however, this court remanded the case for rebriefing because his counsel failed to abstract and discuss all adverse rulings. See Stevenson v. State, CACR02-935 (June 25, 2003).

On rebriefing, Stevenson's counsel has filed another motion to withdraw pursuant to Anders v. California, 368 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, again asserting that after reviewing the record she cannot find a non-frivolous argument for reversal. This second motion includes a sufficient abstract and brief.

Counsel's abstract of the record shows that at the beginning of the revocation hearing, Stevenson's trial counsel objected to the court's subject matter jurisdiction, arguing that once his sentence was put into execution, the circuit court lacked jurisdiction to modify Stevenson's sentence. The abstract also shows that Stevenson's trial counsel made a motion for dismissal at the close of the State's evidence, and renewed his motion at the close of all evidence. The motion for dismissal again challenged the circuit court's jurisdiction and the sufficiency of the evidence supporting Stevenson's revocation. Both motions were denied. After a review of the entire record, we agree that an appeal would be wholly without merit; accordingly, we affirm and grant counsel's motion to withdraw.

The first adverse ruling abstracted and discussed by Stevenson's counsel relates to the revocation of probation proceeding. At Stevenson's hearing, his trial counsel argued that the State failed to prove that Stevenson violated the terms of his probation knowingly and without reasonable excuse by committing the offense of breaking and entering. A trial court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant inexcusably violated the terms and conditions of his probation. Barbee v. State, 346 Ark. 185,56 S.W.3d 370 (2001). The State bears the burden of proving, by a preponderance of the evidence, that the defendant violated the terms of his probation. Id.

At the revocation hearing, the State presented the testimony of Nashay Harris, Stevenson's probation officer. She testified that she was Stevenson probation officer; that the terms and conditions of his probation prohibit him from violating any federal, state, or local laws; that she reviewed these conditions with Stevenson; and that he signed the conditions indicating that he understood them.

Officer Mike Tracetti testified that he observed Stevenson squatting behind a white Lexus in the Unlimited Fitness parking lot; that he entered the parking lot and observed Stevenson with a tire tool in one hand attempting to pry the trunk open; and that there was a hole in the trunk of the car where Stevenson was trying to pry it open, but that the trunk's locking mechanism was still secure. Tracetti testified that he handcuffed Stevenson and asked if the car belonged to him. Stevenson said he was not the owner of the car, but instead pointed to a brown four door Cadillac parked next to the Lexus. At that point, according to Tracetti, Stevenson sighed and stated, "I'm the stupidest mother****** in the world right now. All I wanted was a good radio."

Amy Mason, the owner of the vehicle, testified that she drove her white Lexus to Unlimited Fitness on December 14, 2001; that she had not given Stevenson permission to enter her car; that it appeared that someone had attempted to pry the CD changer from its place in the trunk; and that the damage to her vehicle was about $1600. Based upon the evidence presented, we agree that no meritorious argument can be made for reversal regarding the sufficiency of the evidence supporting the revocation of Stevenson's probation.

The second adverse ruling Stevenson's counsel abstracts and discusses involves a challenge to the circuit court's subject matter jurisdiction, and was initially addressed during the first appeal. Although not required in revocation proceedings, Barbee v. State, supra (overruling Miner v. State, 352 Ark. 283, 28 S.W.3d 280 (2000)), Stevenson's trial counsel made a motion for dismissal pursuant to Ark. R. Crim. P. 33.1 at the close of the State's case and again at the close of all evidence, arguing that the circuit court did not have jurisdiction to modify Stevenson's sentence since it had been put already into execution. Prior to the Arkansas Supreme Court's decision in Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002), there was confusion about whether the circuit courts of this State retain jurisdiction to modify probation sentences or suspended imposition of sentences once they are put into execution. See McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). However, amended Ark. Code Ann. § 5-4-301 (Supp. 2003) makes it clear that a trial court retains subject matter jurisdiction even after a probation sentence is put into execution. See also Moseley v. State, supra. Arkansas Code Annotated section 5-4-301 became effective in April 1999 and is not retroactive in its application. But because Stevenson's offense was committed in December of 1999, Ark. Code Ann. § 5-4-301 applies to this case. Therefore, because the circuit court retained jurisdiction to modify Stevenson's sentence pursuant to Ark. Code Ann. § 5-4-301(d) (Supp. 2003) and Moseley v. State, supra, the trial judge properly denied Stevenson's objection challenging the court's jurisdiction.

Because there is overwhelming evidence supporting the court's finding that Stevenson violated the terms and conditions of his probation by committing the offense of breaking and entering in that he was caught in the act and admitted it; and because the trial court retained subject matter jurisdiction to modify Stevenson's probation sentence pursuant to Ark. Code Ann.§ 5-4-301(d) and Moseley v. State, supra, Stevenson's probation was properly revoked. We find that there are no meritorious grounds for an appeal and no grounds that would even arguably support a reversal. Stevenson's counsel has properly abstracted and discussed all adverse rulings, and we grant her motion to withdraw and affirm the conviction.

Affirmed.

Gladwin and Griffen, JJ., agree.