Cite as
2016 Ark. 415
SUPREME COURT OF ARKANSAS
No. CR-16-53
Opinion Delivered: December 1, 2016
DUSTIN DALE LIMBOCKER
APPELLANT
V. APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT
STATE OF ARKANSAS [NO. 17CR-08-352]
APPELLEE
HONORABLE GARY COTTRELL,
JUDGE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
Dustin Limbocker appeals an order revoking his suspended imposition of sentence
and sentencing him to a term of seventy-two months’ incarceration in the Arkansas
Department of Correction. On appeal, Limbocker argues that the sentence imposed is
illegal because, at the time he violated his suspended imposition of sentence, the sentence
was incorrectly designated as consecutive, rather than concurrent. Thus, he claims that his
sentence could not be revoked for acts that occurred when the sentence was illegal. We
affirm the circuit court’s revocation order.
Limbocker entered into a negotiated plea of guilty for breaking or entering and
criminal mischief. In 2009, the judgment and commitment order reflected a sentence of
seventy-two months’ incarceration on the breaking or entering and suspended imposition
of sentence of 120 months for criminal mischief. The sentences were ordered to run
consecutively. In April 2015, Limbocker pled guilty to possession of a controlled substance
Cite as 2016 Ark. 415
and driving while intoxicated, and in September 2015, he was arrested again for aggravated
assault and first-degree terroristic threatening.
In September 2015, the State filed a petition to revoke the suspended sentence. At
the first revocation hearing, the circuit court found that Limbocker’s original sentence was
illegal in application because the sentences for breaking or entering and the suspended
imposition of sentence were ordered to run consecutively but were not illegal per se.
Therefore, it amended Limbocker’s previous sentence to run concurrently and continued
the hearing on the revocation. At the second revocation hearing, the circuit court revoked
the original sentence as amended, and sentenced Limbocker to seventy-two months’
incarceration.
Limbocker appeals the circuit court’s order revoking his suspended imposition of
sentence. He argues that until his original sentence was modified it was void and could not
have been used as a basis for revocation. Thus, his suspended imposition of sentence could
not be revoked for acts that occurred when no valid revocation period was in place. We
disagree.
It is undisputed that Limbocker’s original sentencing order incorrectly stated that his
sentences were to run consecutively rather than concurrently. See Ark. Code Ann. § 5-4-
307 (Repl. 2013); Walden v. State,
2014 Ark. 193,
433 S.W.3d 864. If an original sentence
is illegal, even though it has been partially executed, the court may correct it. State v. Webb,
373 Ark. 65, 69,
281 S.W.3d 273, 277 (2008). Here, the court properly amended the
sentencing order so that it adhered to our holding in Walden.
2014 Ark. 193,
433 S.W.3d
864. In Walden, we held that Arkansas Code Annotated § 5-4-307(b) requires suspended
2
Cite as 2016 Ark. 415
sentences imposed with terms of imprisonment for different crimes to run concurrently, not
consecutively.
Id. However, the effect of amending an illegal sentencing order is not to
nullify the entirety of the order. We have consistently stated that “the remedy for an illegal
sentence is not dismissal of the proceedings.”
Id. In the same vein, we will not dismiss
Limbocker’s revocation proceedings simply because the sentencing order was facially
invalid. The proper remedy is to amend, which the court did here.
Furthermore, we note that Limbocker has alleged no actual harm as a result of the
illegal sentence. Limbocker’s suspended sentence was revoked within the limits of the
sentencing statute. Regardless of whether the suspended imposition of sentence was 120
months from the date he entered a plea of guilty or from the date of his release, his
subsequent offenses in January 2015 and September 2015 fell within the period of the legal
suspended imposition of sentence. Thus, the incorrect sentencing order was not illegally
applied. Additionally, the error has nothing to do with the issue of guilt or innocence but
relates only to punishment. Limbocker does not allege that he was unaware of the terms of
his suspended sentence, nor does he contest the basis for his revocation. See Ark. Code
Ann. § 16-93-308(f) (“A court may revoke a suspension . . . subsequent to the expiration
of the period of suspension . . . if before expiration of the period . . . the defendant is arrested
for violation of suspension.”). Therefore, we affirm the circuit court’s revocation of
Limbocker’s suspended sentence.
Affirmed.
DANIELSON AND HART, JJ., dissent.
3
Cite as 2016 Ark. 415
PAUL E. DANIELSON, Justice, dissenting. I respectfully dissent. As stated by the
majority, it is undisputed that the sentence was illegal. I disagree with the majority’s holding
that the circuit court had the authority to revoke Limbocker’s suspended sentence based on
actions occurring during the illegal, and therefore void, sentence. Because the sentence was
void, there was no suspended sentence imposed when the acts occurred, and the circuit
court lacked authority to revoke it.
A circuit court does not have the authority to revoke a suspended sentence prior to
the commencement of the period of suspension. Harness v. State, 352 Ark. 335,
101 S.W.3d
235 (2003). A sentence is void when the circuit court lacks the authority to impose it.
Id.
Here, the circuit court entered an order in contravention of statute by stating that the
sentences were to run consecutively rather than concurrently. See
Ark. Code Ann. § 5-4-
307 (Repl. 2013). The majority states that the circuit court “amended,” “modified,” or
“corrected” Limbocker’s sentence to state that it ran concurrently, rather than consecutively.
This change by the circuit court was made at a hearing after the petition to revoke had been
filed in order to comply with section 5-4-307. Limbocker should have been resentenced,
with the sentences to run concurrently from the date of the original 2009 order.
Limbocker entered into a negotiated plea agreement. We apply general contract
principles in interpreting plea agreements. See Godner v. State, 2011 Ark. 248,
382 S.W.3d
674 (per curiam). A plea agreement is just what it says it is: an agreement or contract
between a defendant and the State. Like any other contract, a plea agreement is
unenforceable during the time that it is void or illegal. Any breach or violation of the
agreement can occur only during the time that the agreement is valid and enforceable. Just
4
Cite as 2016 Ark. 415
as the terms of a contract cannot be breached during a time that the contract is void and
unenforceable, the terms of a plea agreement cannot be violated during a time that the
agreement is void and unenforceable.
I have no problem with the circuit court modifying or correcting an illegal sentence
to make the sentence valid and enforceable. However, I cannot see how a person can be
guilty of violating a condition of suspended sentence for actions occurring during a time
that the sentence was illegal, void, and necessarily unenforceable. It seems to me that the
circuit court can consider only actions occurring after the modification or correction of the
sentencing order. Accordingly, I would hold that the circuit court lacked the authority to
revoke Limbocker’s suspended sentence based on actions that occurred before the period of
suspension.
I also disagree with the majority’s conclusion that Limbocker “has alleged no actual
harm as a result of the illegal sentence.” Limbocker’s argument is that the circuit court did
not have the authority to revoke his suspended sentence because his sentence was illegal,
and there was no period of suspension in place when the acts occurred. When the circuit
court revoked Limbocker’s suspended imposition of sentence, he received a sentence of six
years in prison. Six years’ imprisonment strikes me as rather harmful.
For the reasons stated above, I dissent and would reverse and remand.
Hart, J., joins in this dissent.
Lisa-Marie Norris, for appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee
5
