dissenting. The appellant in this criminal case was ordered to serve 90 days in jail as an additional condition of a suspended sentence imposed six months beforehand. Although I do not disagree with the majority’s conclusion that the evidence is sufficient to support some action by the trial court, I dissent because the imposition of a jail sentence as a subsequent additional condition of a previously-imposed suspended sentence is an unauthorized disposition.
Although the question of whether a circuit court acted in excess of its authority is not a matter of subject-matter jurisdiction per se, the Arkansas Supreme Court has treated it as such. See, e.g., Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986); Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985). Therefore, it is proper, as the majority notes, to raise on our own the question of an illegal sentence despite the absence of an objection below. Jones v. State, 27 Ark. App. 24, 765 S.W.2d 15 (1989).
Arkansas Code Annotated § 5-4-306(b) (1987) defines the manner in which a court may alter the conditions of suspension or probation after the period of suspension or probation has begun. It provides that:
During the period of suspension or probation, the court, on motion of a probation officer or the defendant, or on its own motion, may modify the conditions imposed on the defendant or impose additional conditions authorized by § 5-4-303.
The statutory language is explicit. Once the period of suspension or probation has begun, the court may either (1) modify the conditions previously imposed, or (2) impose additional conditions. Under the statutory scheme, confinement is by definition an additional condition:
(a) If the court suspends the imposition of sentence on a defendant or places him on probation, it may require, as an additional condition of its order, that the defendant serve a period of confinement. . . .
Ark. Code Ann. § 5-4-304(a) (1987). However, while confinement is plainly an additional condition according to the unambiguous language of the statute, it is not an additional condition authorized by § 5-4-303.
To me, the conclusion is inescapable: the statutory scheme does not permit a court to alter previously-imposed conditions by ordering confinement after the period of suspension or probation has begun. The wisdom of this restriction is questionable, and I readily concede that the result reached by the majority provides a flexibility which may be beneficial to the courts and defendants alike. Nevertheless, our role is not to legislate, but instead to apply the statutes which the legislature has seen fit to enact according to their plain and unambiguous meaning.
I believe that the majority has departed from that role by construing the statutes involved in such a way as to affirm the trial court’s action. This was wrong for several reasons. First, the statutes are unambiguous and require no construction or interpretation. Second, even if statutory construction had been required, we lack jurisdiction to perform that function under Rule 29 of the Rules of the Supreme Court and the Court of Appeals. Finally, even if these statutes actually required construction and we were authorized to do so, the construction adopted by the majority would be erroneous.
The legislative intent to draw a distinction between the prosaic, general conditions enumerated in § 5-4-303 and the incomparably more severe condition of incarceration is crystal clear. Nor can it be argued that confinement is an additional condition authorized by § 5-4-303. Apparently recognizing this, the majority characterizes the 90-day jail sentence in this case as a “modification” under § 5-4-303(c)(10), which permits the trial court to require the defendant to “[s]atisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty. . . .”
Leaving aside the question of whether or not a 90-day jail sentence is a condition not unduly restrictive of the appellant’s liberty, to treat confinement as a permissible modification under the general language of § 5-4-303, is to render § 5-4-304 utterly meaningless. It is an elementary rule of statutory construction that a statute should be construed so that every word is given effect, if possible, and any construction which would render one or more clauses meaningless is to be avoided. Second Injury Fund v. Yarbrough, 19 Ark. App. 354, 721 S.W.2d 686 (1986).
The majority notes that the trial court sought to give the appellant another chance at rehabilitation, and I agree that revocation questions are discretionary with the trial court. However, the trial court’s right to exercise discretion is limited by legislatively authorized dispositions, and as noted earlier, I believe the legislative intent is clear.
Finally, even though the trial court might have found a basis to revoke the appellant’s suspended imposition of sentence, it did not, so therefore I would reverse and remand this case to allow the trial judge to impose such additional conditions as are authorized under Ark. Code Ann. § 5-4-303.
I respectfully dissent.
Cracraft, J., joins in this dissent.