{
  "id": 6141927,
  "name": "Richard Marion HAMM v. STATE of Arkansas",
  "name_abbreviation": "Hamm v. State",
  "decision_date": "2001-10-31",
  "docket_number": "CA CR 01-189",
  "first_page": "358",
  "last_page": "363",
  "citations": [
    {
      "type": "official",
      "cite": "75 Ark. App. 358"
    },
    {
      "type": "parallel",
      "cite": "57 S.W.3d 252"
    }
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  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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    "name_long": "Arkansas",
    "name": "Ark."
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    {
      "cite": "337 Ark. 494",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "year": 1999,
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      "cite": "323 Ark. 570",
      "category": "reporters:state",
      "reporter": "Ark.",
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      "weight": 3,
      "year": 1995,
      "opinion_index": 0,
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      "cite": "344 Ark. 478",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        210188
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      "weight": 5,
      "year": 2001,
      "opinion_index": 0,
      "case_paths": [
        "/ark/344/0478-01"
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    {
      "cite": "Ark. Code Ann. \u00a7 5-4-307",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1997,
      "pin_cites": [
        {
          "page": "(b)"
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      "opinion_index": 0
    },
    {
      "cite": "Ark. Code Ann. \u00a7 5-4-306",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1999,
      "pin_cites": [
        {
          "page": "(a)(l)"
        }
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  "last_updated": "2023-07-14T22:52:09.138779+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Bird and Crabtree, JJ., agree."
    ],
    "parties": [
      "Richard Marion HAMM v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "L. GRIFFEN, Judge.\nAfter pleading guilty to three, counts of Class A misdemeanor sexual misconduct, Richard Marion Hamm was placed on supervised probation for thirty-six months, conditioned upon Hamm serving one year in the county jail and paying a $1,000 fine and court costs. Approximately one year later, Hamm filed a motion for discharge from probation, alleging that he had been on probation for the maximum period of time allowed by law. The State responded that appellant\u2019s motion was untimely. The trial court agreed, finding that because appellant was sentenced to one year in jail, the ninety-day limitation on sentence modification applied and that it lacked jurisdiction to modify appellant\u2019s sentence. We hold that appellant failed to timely file his motion within ninety days. Consequently, we affirm.\nOn November 19, 1998, appellant was charged by information for the rape of a minor less than fourteen years of age. He entered into a negotiated plea and pled guilty to three counts of Class A misdemeanor sexual misconduct. As a result of his guilty plea, appellant received an imprisonment of one year, a fine of $1,000 and thirty-six months of supervised probation. He was also required to register as a sex offender.\nDuring the plea proceedings, the court queried whether jail was a condition of probation. The State responded yes, and stated that if appellant did not serve 365 days in jail, he would face one year imprisonment on each count. The court entered an Order and Conditions of Supervised Probation on November 10, 1999. This order deferred sentencing and placed appellant on supervised probation for thirty-six months contingent upon him serving one year in the county jail. The record reveals the following exchange at the proceeding:\nThe COURT: And do you lawyers concur in this plea?\nMr. Gibson: Yes, we do, Your Honor.\nMs. Bradshaw: Yes.\nThe COURT: The Court finds the plea voluntarily and intelligently made. I further find that there is a factual basis for the plea. In exchange for a plea o[f| sexual misconduct, there\u2019s three counts, a class A misdemeanor, it\u2019s the judgment and sentence of this court to defer sentencing and place the defendant on supervised probation for thirty-six months. You are to comply with all the conditions of supervised probation. Some of the conditions have an N/A. That\u2019s not applicable?\nMr. Gibson: That\u2019s correct. Your Honor, the plea was a year in the county jail and thirty-six months unsupervised. And the conditions of probation are geared towards somebody who is reporting on a supervised basis.\nThe COURT: Well, where is the other paperwork? I \u2014 do you have a commitment form?\nMr. CHAMBERS: I don\u2019t do a judgment and commitment form for a misdemeanor.\nThe COURT: I need a judgment.\nMr. CHAMBERS: Here it is. That\u2019s one of the orders and condition of supervised probation to serve 365 days in the Ashley County jail.\nMr. Gibson: Right.\nThe Court: So is jail a condition of probation?\nMr. Chambers: That\u2019s correct. If he doesn\u2019t serve his 365 days in jail he could be revoked and he\u2019s got three counts of one year each that he could face. What he\u2019s doing right now, he\u2019s only going to serve one year in jail. . . . And that\u2019s what it says, the order on top of the document directs him to serve 365 days in jail. That\u2019s because it\u2019s a misdemeanor. . . .We typically don\u2019t do judgment and commitment orders.\nThe Court: Well, I can do \u2014 I think he should be \u2014 Is he being sentenced to one year in jail now?\nMr. Gibson: Yes.\nLater in the proceedings, the court engaged in the following colloquy:\nThe COURT: I don\u2019t like to do \u2014 I\u2019m not going to \u2014 Let\u2019s do a regular sentencing to the county jail as if \u2014\nSo the sentence, you will be sentenced to the county jail for one year?\nThe Defendant: Yes sir.\nMr. Chambers: Correct.\nThe Court: Does the probation begin after that?\nMR. CHAMBERS: Correct. There will be two years after that, two years probation. [Emphasis added.]\nMr. Gibson: Right. [Emphasis added.]\nThe trial court entered its findings and orders from the November 8, 1999, proceeding on November 12, 1999, which included the following language:\nThe defendant is sentenced to the county jail for twelve months. Defendant shall be permitted to remain out for two weeks and is to report to the Ashley County Sheriffs Office on November 22, 1999, at 5:00 p.m.\nNext, the court entered an Amended Order and Findings on December 6, 1999. This order stated as follows:\nDefendant is sentenced to the Ashley County Jail for a period of 365 days. Defendant shall report to the Ashley County Jail within two hours from the time he is off work and shall be released two hours prior to reporting to work.\nAll previous orders and conditions not specifically modified shall remain in effect.\nOn December 20, 2000, appellant filed a motion for discharge from probation, alleging that he had been on probation for the maximum period of time allowed by law. In response, the State argued that appellant\u2019s motion was untimely pursuant to a ninety-day statutory limitation. Following a hearing, the trial court found that appellant was sentenced to one year of imprisonment in the county jail, with a portion of the sentence requiring him to be on probation and complying with certain conditions. It then found that because the ninety-day limitation to modify a sentence was applicable, it lacked jurisdiction to modify appellant\u2019s sentence. This appeal follows.\nThe crux of appellant\u2019s argument hinges on his contention that he was not sentenced by the trial court, but was instead placed on probation conditioned upon him serving 365 days in jail. In response, the State persuasively argues that regardless of the semantics used, appellant was convicted with the result being that the trial court lost jurisdiction.\nArkansas Code Annotated section 5-4-401 (b)(1) (Repl. 1997) provides that a Class A misdemeanor sentence shall not exceed one year. When the defendant is placed on probation, the period of probation must not exceed the maximum jail time allowable for the offense charged. See Ark. Code Ann. \u00a7 5-4-306(a)(l) (Supp. 1999). Also, multiple periods of probation must run concurrently. See Ark. Code Ann. \u00a7 5-4-307(b) (Repl. 1997).\nOnce a valid sentence has been put into execution, the trial court loses jurisdiction to modify or amend an original order. See Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001). While a sentence of jail time constitutes a conviction, our courts have repeatedly held that a conviction also occurs when a plea of guilty, combined with a fine and probation or a suspended sentence, is executed, such that the trial court is deprived of jurisdiction to amend or modify the executed sentence. See id.\nRule 37.2 (b) of our Rules of Criminal Procedure provides in pertinent part that \u201call grounds for post-conviction relief from a sentence imposed by a circuit court, including claims that a sentence is illegal or was illegally imposed, must be raised in a petition under this rule.\u201d Subsection (c) goes on to state that when a conviction results from a plea of guilty, the party claiming relief under Rule 37.2 must file a petition in the appropriate circuit court within ninety days of the date of the judgment.\nSection 16-90-lll(a) (Supp. 1999) of the Arkansas Code Annotated, allows a circuit court to correct an illegal sentence at any time. This remedy is narrow and only applies when the trial court seeks to correct a sentence that was imposed in an illegal manner within ninety days or when the petitioner establishes that the sentence was illegal on its face. See id.\nAlthough section 16-90-111(b) allows a trial court to correct an illegal sentence at any time, Rule 37.2(c) of the Arkansas Rules of Criminal Procedure provides a ninety-day time limitation. The filing deadlines contained in Rule 37.2(c) are jurisdictional in nature. See Petree v. State, 323 Ark. 570, 920 S.W.2d 819 (1995). Consequently, our supreme court has held that the ninety-day statute-of-limitation period prescribed in Rule 37.2 governs Rule 37 petitions as well as petitions filed pursuant to section 16-90-111(a). See id.\nThe record demonstrates that appellant entered a plea of guilty and received a 365-day jail term, plus a $1,000 fine. Pursuant to Pike, supra, appellant was convicted. As a result of his conviction, appellant was ordered to serve one year of imprisonment, followed by a two-year term of probation. This sentence was illegal because, contrary to section 5-4-306, appellant\u2019s probationary period exceeded the length of his jail imprisonment. However, appellant filed his petition seeking to modify his sentence approximately one year later. Because the motion was not filed within the ninety-day limitation prescribed by Rule 37.2, the trial court correctly determined that it lacked jurisdiction.\nAffirmed.\nBird and Crabtree, JJ., agree.\nAppellant and his counsel may seek relief via a petition for writ of habeas corpus. See Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999).",
        "type": "majority",
        "author": "L. GRIFFEN, Judge."
      }
    ],
    "attorneys": [
      "Sandra Bradshaw and John F. Gibson, Jr., for appellant.",
      "Mark Pryor, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Richard Marion HAMM v. STATE of Arkansas\nCA CR 01-189\n57 S.W.3d 252\nCourt of Appeals of Arkansas Division II\nOpinion delivered October 31, 2001\nSandra Bradshaw and John F. Gibson, Jr., for appellant.\nMark Pryor, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0358-01",
  "first_page_order": 386,
  "last_page_order": 391
}