¶1dissenting. I dissent because the trial judge had no jurisdiction to alter the sentence once executed.
¶2The majority cites Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983), to support its decision. It holds exactly the opposite. The trial judge entered an order directing a defendant to be reincarcerated and serve out a year sentence. Eleven months of the sentence had elapsed when the defendant was brought before the court. We reversed the trial court’s order, holding the sentence could not be changed.
¶3dissenting. I am somewhat puzzled by the majority opinion. The opinion has two primary effects: (1) It allows the state or court to reincarcerate the appellant without a trial on her subsequent acts, and (2) It tries to reinstate the law as it existed prior to 1932. If the appellant’s release was void, as the majority holds, then it can have no effect on the sentence and it has expired. There can be no dispute that execution of the sentence had commenced.
¶4“When a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it.” Majority opinion, relying upon Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983). Coones closely parallels the case here under consideration. In Coones the prisoner was released during the term of his sentence because of poor health. He had been sentenced to two seven month sentences, to run consecutively. The Court of Appeals subsequently reduced his sentence to one year in the county jail. After 11 months had elapsed the trial court ordered Coones to serve the remainder of his sentence, without credit for the time he had been on “furlough.” We reversed and held that the time on the sentence continued to run during the time the prisoner had been in the hospital and at home convalescing. I cannot understand why the majority continues to misinterpret Coones. I joined in the majority opinion and still believe it is correct and just. The cases of Cooper v. State, 278 Ark. 294, 645 S.W.2d 950 (1983), and Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977) were cited as precedent in Coones. The same cases are cited in the majority opinion for the opposite result. The facts in Coones were fairly set out when we stated:
A month short of a year from the beginning of his original sentence, the trial court conducted hearings and appellant was again ordered incarcerated. The appellant asked the trial court to credit him with the time he had spent in the hospital and at home convalescing. The trial court refused to do so. Appellant asserts on appeal that this was error.
¶5We reversed the trial court. How can it be said that the decision supports the majority view. It cannot, in my opinion.
¶6Although the majority states that the release of Ms. Davis was void, the effect of this decision is to sanction this “furlough” and subsequent reinstatement of sentence as a valid exercise of the power of the trial court. How do we justify a void sentence? The total sentence had expired. It had been served. Therefore, there was no sentence left to be reinstated. If she has committed another trespass, she is subject to another charge. However, we cannot use the old trespass for a new sentence. If it is the intention of the majority to overrule our three latest cases and return to the law as it was interpreted in the 1920’s it should plainly so state.
¶7I would reverse and dismiss.