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Todd v. State

Court of Appeals of Arkansas, Division I

June 3, 2015

MICHAEL TODD, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Editorial Note:

This opinion is uncorrected and subject to revision before publication in the printed official reporter.

APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT. NOS. CR-2009-74 and CR-2009-75. HONORABLE DUNCAN McRAE CULPEPPER, JUDGE.

Anthony S. Biddle, for appellant.

Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Chief Judge. VIRDEN and HIXSON, JJ., agree.

OPINION

ROBERT J. GLADWIN, Chief Judge

Appellant Michael Todd appeals the revocation of his suspended imposition of sentences (SIS) by the Hempstead County Circuit Court. He does not challenge the preponderance of the evidence supporting his revocation; rather, he argues that the circuit court erred when it opted to run his sentences consecutively rather than concurrently. Appellant also contends that the circuit court erroneously sentenced him without evidence of when his suspension began, basically not knowing how much of his SIS remained on which to sentence him. Additionally, appellant argues for the first time on appeal that his original sentences were facially illegal pursuant to Arkansas Code Annotated section 5-4-301(a)(2)(A) (Supp. 2009). Because this court lacks jurisdiction to hear the appeal, pursuant to Arkansas Rule of Appellate Procedure--Criminal (2)(a) (2014), we dismiss.

On March 6, 2009, in CR-2009-74, appellant was charged with nine counts of fraudulent use of a credit card or debit card, Class C felonies, and one count of theft by receiving (credit card or account number or firearm worth less than $2,500), a Class C felony. On March 6, 2009, in CR-2009-75, appellant was charged with breaking or entering, a Class D felony, theft of property $500 or less, a Class A misdemeanor, fraudulent use of a credit card or debit card, a Class A misdemeanor, and theft of property less than $2,500 and greater than $500, a Class C felony. On April 14, 2009, appellant entered a negotiated guilty plea to all of the charges in the above two cases.

On May 28, 2009, appellant pled no contest in case numbers CR-2009-74 and CR-2009-75, to ten counts of fraudulent use of a credit card, two counts of theft of property, and one count each of theft by receiving and breaking or entering. Running the sentences concurrently, the circuit court sentenced appellant to an aggregate term of eight years' imprisonment in the Arkansas Department of Correction (ADC), to be followed by seven years' SIS. Conditions of his suspension included that he not commit any offense punishable by imprisonment. On April 14, 2009, appellant signed the conditions-of-suspended-sentence order in each of the two cases.

On June 4, 2014, in CR-2009-74 & CR-2009-75, the State filed a petition to revoke the suspended sentences, alleging that appellant was convicted of forgery, a Class C felony, in Howard County, Arkansas, and that he had violated a condition of the suspended sentence in that he had committed a crime against the State of Arkansas.

A hearing was held on June 9, 2014, and the circuit court found that the allegations in the petition to revoke suspended sentence were true. Appellant objected to sentencing without proof of his release from the ADC, and the circuit court took the matter under advisement until June 16, 2014. On June 11, 2014, the State filed a motion to re-open record for supplemental proof. On June 16, 2014, the circuit court granted the State's motion to reopen record for supplemental proof. The State entered a certified copy of the PEN pack, and the circuit court found that appellant had five years remaining on his suspended sentence.

After the revocation hearing, the circuit court found that appellant had violated the terms of his SIS and revoked his suspensions. Based upon that finding, appellant was sentenced, in CR-2009-74, to ten sixty-month sentences to run consecutive to each other and consecutive with the Howard County case and the other Hempstead County cases. In CR-2009-75, the circuit court sentenced appellant to two sixty-month sentences to run consecutive to each other and consecutive with CR-2009-74 and consecutive with the Howard County case and the other Hempstead County cases for a total, in both cases, of sixty years in the ADC. Sentencing orders were filed on June 26, 2014, and amended sentencing orders were filed on July 8, 2014.

Appellant filed a notice of appeal on July 22, 2014, which would have been timely filed as to both the original and amended sentencing orders, but it does not specifically refer to either. In the heading of the notice of appeal, appellant does list both case ...


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