LELAND FLEMING v. STATE OF ARKANSAS
No. CR-13-215
ARKANSAS COURT OF APPEALS, DIVISION I
October 2, 2013
2013 Ark. App. 551
HONORABLE GARY COTTRELL, JUDGE
APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [No. 17 CR-2002-63]; AFFIRMED
Appellant Leland Fleming claims that his suspended sentence was erroneously revoked for non-payment of restitution based on the fact that the amount of required restitution was increаsed without his knowledge and express consent. He also claims that the trial court was without jurisdictiоn to revoke his suspended sentence. After considering the merits of his arguments, we affirm his sentence.
Fleming pled no contest to a charge of non-support on May 20, 2002. He was sentenced to a five-year suspended imposition of sentence and was ordered to pay $2012.50 in restitution. He was also given thirty days of community service, to be served on the weekends. However, on May 31, 2002, the judgment and disposition order was entered, noting that the restitution amount had been amended to $9928, per the child-support-enforcement ledger. This amended restitution order was acknowledgеd and signed by Fleming’s defense counsel.
Fleming’s argument on appеal rests on the fact that on May 20, 2002, when he pled no contest to non-support, he signed a writtеn document entitled “Conditions of Suspension or Probation” that provided that he pay $2072.50 in restitution. This same amount was included as part of his plea agreement. However, his judgment and disposition оrder required that he pay $9928 in restitution. The circuit court held a hearing on the matter. Fleming argued there, as he does on appeal, that the petition to revoke should have been dismissed based on the lack of written notice of the modified restitution amount. He claims that the restitution obligation should be controlled by the plea agreement and conditions document that he signed, requiring that he pay only $2072.50. The State responded that a judgment and disposition order signed by the court and filed of record controlled over the other documents received by Fleming. The
State also argued that Fleming’s defense counsel had signed the amended order on Fleming’s behalf, which provided Fleming with written notice through his agent.
According to
The circuit court noted that Fleming was aware of the amount he owed based on his behavior of paying his obligation well beyond the amount contained in the original agreement, and the fact that he was notified that he was рast due in his financial obligations and was instructed (multiple times) to bring his account current. The trial court reasoned that by Fleming’s payment beyond the original amount and by receipt of various past-due notices, Fleming waived any reliance on the plea agreement and conditions document.
We agree with the trial court’s conclusion that Fleming’s behavior relating to payment аnd his receipt of the arrearage amount indicates that he was aware of the amеnded amount of restitution. We are further satisfied that Fleming received notice of the amendеd order via his attorney and hold that Fleming was bound by his agent. A defendant’s attorney can make
As to his second point on appeal, it is resolved by the first point’s outcome. A circuit court retains jurisdiction over a defendant who has been ordered to pay restitution as a condition of a deferred imposition of sentence until the restitution has been paid in full, even beyоnd the duration of deferment. Smith v. State, 83 Ark. App. 48, 52–53, 115 S.W.3d 820, 823 (2003).
Affirmed.
PITTMAN and WALMSLEY, JJ., agree.
Lisa-Marie Norris, for appellant.
Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.