JACKIE D. HOWARD, APPELANT
STATE OF ARKANSAS, APPELLEE
FROM THE MILLER COUNTY CIRCUIT COURT. NO. 46CR-17-229.
HONORABLE BRENT HALTOM, JUDGE..
A. McGough, P.A., by: Phillip A. McGough, for appellant.
Rutledge, Att'y Gen., by: Jason Michael Johnson,
Ass't Att'y Gen., for appellee.
MURPHY, Judge. HARRISON and HIXSON, JJ., agree.
Miller County Circuit Court revoked Jackie Howard's
probation and sentenced him to six years in the Arkansas
Department of Correction. Appellate counsel initially filed a
no-merit brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and
Arkansas Supreme Court Rule 4-3(k) . In Howard
v. State, 2019 Ark.App. 349 (Howard I ), this
court denied counsel's motion to withdraw and ordered
rebriefing because we identified an issue that may not be
wholly frivolous on appeal. The case has returned to us as a
merit brief, and Howard now argues that he is entitled to an
additional one hundred days of jail-time credit against his
six-year sentence. We affirm and remand with instructions.
pleaded no contest in April 2017 to third-degree domestic
battery and was placed on a three-year term of
probation. For some reason, the sentencing order
was not entered until July 7, 2017. The
State filed a petition to revoke Howard's probation on
June 19, 2017, and on July 25, Howard admitted the
violations. He received a sixty-day jail sanction with eleven
days of jail time credited to the sanction, and the circuit
court reinstated his probation with added costs and fees
ordered to be paid.
State filed another petition to revoke on August 9, 2018,
alleging six violations of probation. Following the
revocation hearing on October 2, the circuit court revoked
Howard's probation specifically for failure to pay his
court-ordered financial obligations, failure to report to his
supervising probation officer, failure to maintain an
address, and Howard's admission of drug use while on
probation. The circuit court sentenced him to six years in
the Arkansas Department of Correction with fifty-three days
of jail-time credit. Howard now appeals, arguing that he is
entitled to an additional one hundred days of jail-time
outset, the State asserts that Howard's argument is not
preserved for our review. The State correctly notes that
Howard's point on appeal does not involve an illegal
sentence, which can be raised for the first time on appeal.
Rather, Howard's complaint is that his sentence was
imposed in an illegal manner. See Richie v.
State, 2009 Ark. 602, at 6, 357 S.W.3d 909, 912-13
(holding there is a difference between an illegal sentence
and a sentence imposed in an illegal manner; a request for
jail-time credit is a request for modification of a sentence
that has been imposed in an illegal manner). The State
contends that because Howard's request is for
modification of a sentence, his specific claim that he should
have been awarded an additional one hundred days of jail-time
credit was never articulated to the circuit court and is thus
not preserved. We disagree.
Howard argued that if the court did not give him credit for
jail time spent, the six-year sentence would exceed the
maximum time permitted by the statute. In response, the court
stated, " You can give him whatever credit you
want." Nothing more occurred on the record, and
according to the sentencing order, he received a jail-time
credit of fifty-three days, which is the amount of time
Howard spent incarcerated for his most recent arrest awaiting
revocation— from August 8 to October 2, 2018. If a
request for jail-time credit is raised in the circuit court
either as part of the original proceedings or in a
postjudgment motion, direct-appeal review is permitted.
Weatherford v. State,2019 ...