dissenting. Petitioner entered a guilty plea on February 3, 1981, and was sentenced to three years probation. Subsequently his probation was revoked, and he was sentenced to ten years in prison. I think appellant correctly contends that it was unlawful for him to be sentenced to a term longer than the probationary period. I agree that sentencing is prescribed by substantive rather than procedural law.
The record shows that appellant entered a guilty plea and the court entered a judgment of three years to be served on probation. The majority simply ignores the fact that a judgment was entered. I have read the record. Written on a page entitled “Judgment and Order of Probation” is the following: “Entered a plea of guilty... placed on probation for a period of three years.” How can reasonable minds argue he was not sentenced? Ark. Stat. Ann. § 43-2332 (Supp. 1983) which deals with probation contains the following language: “Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence which might have been originally imposed.” This act has not been changed since 1979. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980) specifically held “no sentence was imposed,” therefore, it is factually different from the present case. McGee tried to distinguish Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980) but failed. Culpepper is still valid law and complies with this dissent and our present law. Even if we reduced this second sentence for the same crime to three years the appellant still must serve his twenty year sentence. I am of the opinion we should follow the law. This court stated in Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981): “Here, the plea was accepted and the term of probation was five years. Consequently, a later suspended sentence for ten years was improper.” Also, see Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981), to the same effect.
Therefore, under the statutes in effect in 1980, the trial court could not sentence petitioner to more than the term imposed, three years. Since petitioner’s sentence of 10 years was in excess of the maximum authorized by law, I would modify the sentence in accordance with A.R.Cr.P. Rule 37.1 (c) to a term of three years.
I am authorized to say that Hickman and Dudley, JJ., join me in this dissent.