Fleming v. State
2013 Ark. App. 551
Ark. Ct. App.2013Background
- Fleming pled no contest to non-support (May 20, 2002) and received a five-year suspended imposition of sentence with restitution ordered.
- At plea, Fleming signed a Conditions of Suspension or Probation and plea agreement listing $2,072.50 (or $2,012.50 in parts of record) in restitution.
- The filed judgment and disposition (May 31, 2002) amended restitution to $9,928 per the child-support-enforcement ledger; Fleming’s counsel signed the amended order.
- Fleming paid restitution intermittently and had paid $5,450 by Sept. 27, 2011; he pled guilty to contempt in 2009 and was ordered to continue paying restitution.
- State petitioned to revoke Fleming’s suspended sentence (Aug. 30, 2012) for failure to pay the higher restitution; Fleming moved to dismiss for lack of written notice of the amended amount.
- Trial court found Fleming had notice (through counsel and his payment behavior) and waived reliance on the original plea papers; court revoked and sentenced him to 18 months’ imprisonment. Appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether revocation for nonpayment was improper because restitution was increased without written notice | Fleming: plea paperwork controlled; he never received written notice of amended restitution | State: the signed judgment controls; counsel’s signature on amended order provided notice via agent | Court: judgment controls; Fleming had notice (via counsel and conduct) and waived the written-notice requirement |
| Whether counsel’s signature on amended order can bind defendant | Fleming: he did not personally receive or sign amended amount | State: counsel signed amended order on his behalf, giving notice through agent | Court: attorney can bind client; notice via agent is effective |
| Whether the circuit court retained jurisdiction to revoke after the deferment period | Fleming: argued court lacked jurisdiction | State: restitution condition preserves jurisdiction until paid in full | Court: retained jurisdiction until restitution fully paid; revocation proper |
| Whether written-notice requirement is jurisdictional and nonwaivable | Fleming: implied that lack of written notice invalidates revocation | State: written notice is procedural and can be met or waived by conduct/agent | Court: written notice is procedural; purposes satisfied so requirement did not invalidate revocation |
Key Cases Cited
- Thorton v. State, 267 Ark. 675, 590 S.W.2d 57 (notice requirement need not reflect actual receipt when purposes of notice are otherwise met)
- Banning v. State, 22 Ark. App. 144, 737 S.W.2d 167 (procedural rights like written-notice requirement may be waived)
- Johnson v. State, 314 Ark. 471, 863 S.W.2d 305 (attorney may make agreements and waivers binding on client)
- Smith v. State, 83 Ark. App. 48, 115 S.W.3d 820 (circuit court retains jurisdiction over restitution condition until paid in full)