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MOSELEY v. STATE7/5/2002
Appellant Michael Dee Moseley appeals the judgment of the Benton County Circuit Court revoking his probation and sentencing him to a term of imprisonment of six years. For his sole issue on appeal, Moseley contends that the trial court erred in failing to dismiss the State's petition to revoke for lack of subject-matter jurisdiction. Specifically, he asserts (1) that Act 1569 of 1999 did not overrule this court's caselaw that a trial court cannot revoke a person's probation twice or modify or add additional terms to the probation, once the sentence has been placed into execution; and (2) that Act 1569 of 1999 allows a trial court to add a period of confinement after probation revocation only if no period of confinement was included in the original order. We hold that the trial court had jurisdiction to revoke Moseley's probation following the State's second petition to revoke, and to sentence him to prison. We affirm the trial court.
On June 22, 1999, Moseley was arrested for the rape of JD, a minor. On August 11, 1999, Moseley was charged with incest, and on January 25, 2000, he pled guilty to sexual solicitation of a minor and false imprisonment in the second degree. He was sentenced to ninety days in the county jail, with ninety days credit given for time already served, and six years of supervised probation under Act 346 as a first-time offender. His probation was also conditioned on paying fees and costs: court costs of $150.00, a child and sex offender fund fee of $250.00, a DNA fund fee of $250.00, and a public defender fee of $350.00. The plea agreement and order also provided that Moseley was to participate in a sex offender treatment program, a domestic abuse intervention program, and parenting classes. In addition, he was to have no unsupervised contact with the victim or other minor children in the household unless otherwise ordered by the trial court.
On February 11, 2000, the State filed a petition to revoke Moseley's probation. In that petition, the State alleged that Moseley had reported to the probation office in the unsupervised company of a minor, that he had admitted to unsupervised contact with the victim, JD, and that he had failed to comply satisfactorily with the sex-offender treatment program in that he had only attended two of eight sessions. On March 1, 2000, the trial court entered a revocation order in which it continued the probation and found Moseley in contempt for violation of its original order. The trial court sentenced him to thirty days in the county jail for contempt with nineteen days' credit and placed him on intensive supervision for three months. The trial court also extended his period of probation an additional two months, ordered him to pay the fees and costs, and further ordered that a residential plan be prepared to ensure "no contact with minors." The plan was later devised by Moseley's wife, Judy, and filed with the trial court on March 9, 2000.
On April 24, 2001, the State filed a second petition to revoke Moseley's probation. In this petition, the State alleged that Moseley had committed the offenses of driving while intoxicated, criminal mischief, no driver's license, disorderly conduct, implied consent, endangering the welfare of a minor, and child passenger protection. Further, the State claimed that Moseley had been in the unsupervised company of a minor and had consumed excessive alcohol in violation of the court's order and his probation agreement. Attached to the State's petition was the affidavit of Mark Bernthal, Moseley's probation officer, in which he stated that according to a police report, Moseley "had his 5 year old son, who was injured, in his lap while driving." Moseley had struck a rock disabling his vehicle. He was in
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