dissenting. I disagree with the majority opinion primarily because I believe the sentence had already been “imposed.” In the case of Adams v. State, 269 Ark. 601, 599 S.W.2d 437 (Ark. App. 1980), the Arkansas Court of Appeals considered the same argument presented in this appeal. The court stated: “[w]e believe the trial judge did not have the authority to impose a greater sentence than was originally imposed pursuant to Ark. Stat. Ann. §41-803 (Repl. 1977).” The court held that the trial judge was authorized to suspend imposition of a sentence or place the defendant on probation. Citing Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), the Court of Appeals further held that “suspension of execution of sentence” was no longer authorized because Ark. Stat. Ann. § 43-2326 (Repl. 1977) was repealed by implication by the enactment of 41-803(1) of the Criminal Code. (It should be noted at this point that, as of April, 1985, the trial court is once again authorized to suspend the execution of sentence. See Ark. Stat. Ann. § 43-2326.1 (Supp. 1985).) Therefore, having pronounced and imposed sentence, the trial judge could not thereafter impose a greater sentence than was originally imposed.
In Culpepper, supra, this Court stated:
There is a substantial difference between advising a defendant that he is sentenced to 5 years suspended subject to certain behavioral requirements and in advising a defendant that the imposition of sentence will be suspended or postponed for 5 years conditioned on the same behavioral requirements. If the appellant had been sentenced in compliance with § 41-803 by the suspension of the imposition of sentence, rather than by the suspension of the execution of sentence, the trial court could have sentenced him to 15 years imprisonment upon revocation of the suspension, as is authorized by Ark. Stat. Ann. § 43-1208(6) ....
Reference is made throughout the Code to suspending imposition of sentence or placing the defendant on probation, but in no instance do we find provision for both.
In Culpepper the court acknowledged that Ark. Stat. Ann. § 41-1208(6) was partially repealed by implication in 1979. In that year, the legislature amended Ark. Stat. Ann. § 43-2332 (Repl. 1977) and limited the sentence authorized on revocation of probation:
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. [A.S.A. § 43-2332 (Supp. 1985)].
To me it is quite clear that the trial judge in this case has attempted to retroactively announce that he was suspending imposition of the sentence, when, in fact, the sentence had already been imposed. The docket entry dated March 8, 1982, reflects, “Fine $500.00 and costs, plea of guilty taken under advisement for 3 years probated term — [conditions of probation and payment of fine were enumerated].” The appellant paid the fine in full. There should have been no misunderstanding that the appellant was required to pay the $500.00 and meet the probation terms for a period of three years.
Obviously the court attempted to suspend imposition of sentence for three years and place the appellant on probation at the same time. The majority opinion correctly states, “the Code does not permit the court to suspend the imposition of sentence and simultaneously place the defendant on probation. . . .’’The trial court in this case used terminology that could only fit probation and in express terms attempted to suspend imposition of sentence. Arkansas Statutes 41-801 (Repl. 1977) defines “suspension” as a procedure whereby a defendant, who pleads or is found guilty, is released without pronouncement of sentence and without supervision. It defines “probation” as a procedure whereby a defendant, who pleads or is found guilty, is released without pronouncement of sentence but subject to supervision. The two cannot occur simultaneously.
I agree with the majority that the court could have fined her and placed her on probation or it could have fined her and suspended imposition of sentence. See A.S.A. § 41-803(4) (Repl. 1977). It could not do both. Such action is no longer authorized. Culpepper, supra.
In McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980), we clearly stated that the sentence had not been imposed. I believe that in the present case sentence had been imposed and executed. The payment of the fine amounted to execution of a part of the sentence, thereby precluding the trial court upon revocation of probation from imposing a greater sentence than that originally imposed.
I see no reason why Ark. Stat. Ann. § 43-2332 (Supp. 1985) should not be given its plain meaning as it relates to revocation of probation. It simply limits the term of a sentence imposed upon revocation of probation to the term which was originally imposed. It is clear that the trial court is this case sentenced the appellant to pay a fine and placed her on probation. Upon revocation of that probation, the court is precluded from imposing a greater sentence than that originally imposed.
Furthermore, if we had decided that the trial court had suspended three years of the sentence, we would be required to follow our decision in Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981). In Queen we stated, “[s]ince the court originally imposed a five year sentence and suspended three years of that sentence, it could only revoke the three year suspended sentence.” We reduce Queen’s sentence to the term of the suspended sentence.
I would modify the decision of the trial court to limit the term of imprisonment to that originally imposed, as we did in Culpepper.