FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-08-352]
HONORABLE GARY COTTRELL, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee
K. WOOD, ASSOCIATE JUSTICE
Limbocker appeals an order revoking his suspended imposition
of sentence and sentencing him to a term of seventy-two
months' incarceration in the Arkansas Department of
Correction. On appeal, Limbocker argues that the sentence
imposed is illegal because, at the time he violated his
suspended imposition of sentence, the sentence was
incorrectly designated as consecutive, rather than
concurrent. Thus, he claims that his sentence could not be
revoked for acts that occurred when the sentence was illegal.
We affirm the circuit court's revocation order.
entered into a negotiated plea of guilty for breaking or
entering and criminal mischief. In 2009, the judgment and
commitment order reflected a sentence of seventy-two
months' incarceration on the breaking or entering and
suspended imposition of sentence of 120 months for criminal
mischief. The sentences were ordered to run consecutively. In
April 2015, Limbocker pled guilty to possession of a
controlled substance and driving while intoxicated, and in
September 2015, he was arrested again for aggravated assault
and first-degree terroristic threatening.
September 2015, the State filed a petition to revoke the
suspended sentence. At the first revocation hearing, the
circuit court found that Limbocker's original sentence
was illegal in application because the sentences for breaking
or entering and the suspended imposition of sentence were
ordered to run consecutively but were not illegal per se.
Therefore, it amended Limbocker's previous sentence to
run concurrently and continued the hearing on the revocation.
At the second revocation hearing, the circuit court revoked
the original sentence as amended, and sentenced Limbocker to
seventy-two months' incarceration.
appeals the circuit court's order revoking his suspended
imposition of sentence. He argues that until his original
sentence was modified it was void and could not have been
used as a basis for revocation. Thus, his suspended
imposition of sentence could not be revoked for acts that
occurred when no valid revocation period was in place. We
undisputed that Limbocker's original sentencing order
incorrectly stated that his sentences were to run
consecutively rather than concurrently. See Ark.
Code Ann. § 5-4-307 (Repl. 2013); Walden v.
State, 2014 Ark. 193, 433 S.W.3d 864. If an original
sentence is illegal, even though it has been partially
executed, the court may correct it. State v. Webb,
373 Ark. 65, 69, 281 S.W.3d 273, 277 (2008). Here, the court
properly amended the sentencing order so that it adhered to
our holding in Walden. 2014 Ark. 193, 433 S.W.3d
864. In Walden, we held that Arkansas Code Annotated
§ 5-4-307(b) requires suspended sentences imposed with
terms of imprisonment for different crimes to run
concurrently, not consecutively. Id. However, the
effect of amending an illegal sentencing order is not to
nullify the entirety of the order. We have consistently
stated that "the remedy for an illegal sentence is not
dismissal of the proceedings." Id. In the same
vein, we will not dismiss Limbocker's revocation
proceedings simply because the sentencing order was facially
invalid. The proper remedy is to amend, which the court did
we note that Limbocker has alleged no actual harm as a result
of the illegal sentence. Limbocker's suspended sentence
was revoked within the limits of the sentencing statute.
Regardless of whether the suspended imposition of sentence
was 120 months from the date he entered a plea of guilty or
from the date of his release, his subsequent offenses in
January 2015 and September 2015 fell within the period of the
legal suspended imposition of sentence. Thus, the incorrect
sentencing order was not illegally applied. Additionally, the
error has nothing to do with the issue of guilt or innocence
but relates only to punishment. Limbocker does not allege
that he was unaware of the terms of his suspended sentence,
nor does he contest the basis for his revocation.
See Ark. Code Ann. § 16-93-308(f) ("A
court may revoke a suspension . . . subsequent to the
expiration of the period of suspension . . . if before
expiration of the period . . . the defendant is arrested for
violation of suspension."). Therefore, we affirm the
circuit court's revocation of Limbocker's suspended
E. Danielson, Justice, dissenting.
respectfully dissent. As stated by the majority, it is
undisputed that the sentence was illegal. I disagree with the
majority's holding that the circuit court had the
authority to revoke Limbocker's suspended sentence based
on actions occurring during the illegal, and therefore void,
sentence. Because the sentence was void, there was no