FROM THE PULASKI COUNTY CIRCUIT COURT, NINTH DIVISION NOS.
60CR-14-3123; 60CR-14-3834; 60CR-14-4038; 60CR-14-4039
HONORABLE MARY SPENCER MCGOWAN, JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
Kabal Burnett appeals the Pulaski County Circuit Court's
order revoking her probation, arguing that her motion to
dismiss was improperly denied because the court lacked
jurisdiction to revoke her probation for acts she committed
before being placed on probation. The State concedes error.
We reverse and dismiss.
11, 2016, Burnett pleaded guilty to eight counts of
second-degree forgery in Pulaski County. She was placed on
probation for three years. On December 7, 2016, the State
filed a petition to revoke probation in each of the cases.
Burnett pleaded guilty on December 16, 2016, and again
received probation. A new sentencing order reflecting that
plea was entered on December 22, 2016, at 4:07 p.m.
January 12, 2017, the State filed a petition to revoke
Burnett's probation, alleging that on December 22, 2016,
Burnett violated the terms of her probation when she failed
to report for her intake appointment that was scheduled for
10:00 a.m. on December 22, 2016.
filed a motion to dismiss and argued that at the time she
missed the December 22, 2016 appointment, she was not yet on
probation because the new sentencing order had not been
filed. The court disagreed, reasoning that Burnett was given
notice of the date for intake with the probation officer, had
signed the terms and conditions of her probation, and yet
still failed to appear.
subsequently filed this appeal, making the same argument to
this court. That is, that the circuit court lacked statutory
authority to revoke her probation because the petition for
revocation was based on conduct that took place before she
was placed on probation. We agree.
revocation proceeding, the State must prove its case by a
preponderance of the evidence, and this court will not
reverse the circuit court's decision unless it is clearly
against the preponderance of the evidence. Doyle v.
State, 2009 Ark.App. 94, at 3, 302 S.W.3d 607, 609. A
period of probation commences to run on the day it is
imposed. Ark. Code Ann. § 5-4-307 (Repl. 2013). The
Arkansas Supreme Court has held that an order is not
effective until it is entered of record. Hewitt v.
State, 362 Ark. 369, 371, 208 S.W.3d 185, 186 (2005).
Furthermore, until a guilty plea and resulting sentence are
memorialized as a sentencing order and entered into the
record, there is not an effective judgment of conviction.
Bradford v. State, 351 Ark. 394, 404, 94 S.W.3d 904,
v. State is on point. 2010 Ark.App. 779, 379 S.W.3d 692.
There, on March 17, 2009, Garduno-Trejo pleaded guilty and
was sentenced to five years' probation for possession of
a controlled substance and ten years' suspended
imposition of sentence for delivery of a controlled
substance. Id. at 2, 379 S.W.3d at 693. As part of
the plea agreement, Garduno-Trejo agreed to not violate any
laws and abide by every requirement set out in the circuit
court's order. Id. at 3, 379 S.W.3d at 694. On
March 24, 2009, he was arrested by federal officials for
selling one pound of methamphetamine. Id. at 1, 379
S.W.3d at 693. Two days later, on March 26, 2009, a
judgment-and-disposition order was filed, reflecting the
March 17, 2009 plea. Id. at 3-4, 379 S.W.3d at 694.
The circuit court subsequently revoked Garduno-Trejo's
probation and suspended sentence based on the March 24, 2009
offenses. Id. at 2, 379 S.W.3d at 693.
reversed and dismissed the revocation, holding that the
suspended sentence and probation were not in effect on the
date they were violated (March 24, 2009) because the
judgment-and-disposition order was not entered into the
record until two days later (March 26, 2009). Id. at
8, 379 S.W.3d at 696. We rejected the State's argument
that Garduno-Trejo could not demonstrate prejudice because he
had signed and acknowledged the conditions of his suspended
sentence and probation. Id. at 5, 379 S.W.3d at 694.
like Garduno-Trejo, the date and time of the entry
of judgment is at issue because the judgment was imposed
(filed on December 22, 2016, at 4:07 p.m.) after Burnett had
failed to appear before her probation officer (December 22,
2016, at 10:00 a.m.). Considering our precedent, we hold that
the circuit court erred ...