concurring. I agree only with the result achieved by the majority of the court in this case.
The original sentence was improper. On January 9, 1979, appellant was “sentenced to three (3) years in the State Penitentiary suspended on each charge to run concurrent, upon the following conditions . . .” This was a suspended execution of a pronounced sentence, and that method of sentencing is not sanctioned by the 1976 Criminal Code. See Ark. Stat. Ann. § 41-803(4) (Repl. 1977); Culpepper v. State, 268 Ark. 263, 595 S.W.2d 270 (1980); McGee v. State, 271 Ark. 611, 609 S.W.2d 23 (1980). Having accepted the sentence, however, appellant now has no legal standing to complain. See, McGee v. State, supra.
In this case, the trial court had no j urisdiction to impose any sentence on appellant, because the term to which he had been sentenced expired on January 9, 1982, some thirteen months before a hearing on the revocation petition was held. Jurisdiction of the subject matter is always open and cannot be conferred by consent or waiver. Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978). Jurisdiction is not preserved by the provisions of Ark. Stat. Ann. § 41-1208 (Repl. 1977), which states that the court may revoke a suspension or probation subsequent to the expiration of the period of suspension or revocation, provided a warrant is issued for his arrest for violation of the terms of his suspension or probation, before expiration of the term. Section 41-1208 is a part of the 1976 Criminal Code and could be intended to apply only to suspension or probation as defined in the Criminal Code, § 41-803(4), supra. I would reverse and dismiss the j udgmen t of the trial court on the basis of lack of jurisdiction.