Howard v. State

          APPEAL FROM THE MILLER COUNTY CIRCUIT COURT. NO. 46CR-17-229. HONORABLE BRENT HALTOM, JUDGE..

         COUNSEL:

         Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

          MIKE MURPHY, Judge. HARRISON and HIXSON, JJ., agree.

         OPINION

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          MIKE MURPHY, Judge

          The 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.

          Howard pleaded no contest in April 2017 to third-degree domestic battery and was placed on a three-year term of probation.^[1] For some reason, the sentencing order was not entered until July 7, 2017. The

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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.

          The 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 credit.

          At the 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.

          Below, 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 ...