dissenting. This is the first time in our history that an accused has been sentenced to a term of forty years without having a trial. Apparently the theory is that if a defendant has had one trial, even if it was for another crime, he may be found guilty on future charges simply by filing a petition for revocation of probation. In 1987, the appellant pleaded guilty to burglary and theft of property and received a sentence of five years probation. The usual restrictions against violations of law were included in the terms of the probation. He was also assessed costs, and probation fees, and given a ninety day jail sentence.
The petitioner allegedly participated in an aggravated robbery on January 7, 1988. The prosecuting attorney filed a petition for revocation of probation on March 9, 1988. At the conclusion of the hearing on revocation, the court stated that it was “convinced that you were involved in the robbery and that you did exert physical force by throwing a substance upon the victim and nearly blinding him. . . . [T]his court hereby sentences you to a term of forty years in the Arkansas Department of Correction.” I do not believe our society has reached a point where it is willing to require a person to serve forty years in prison without being adjudged guilty of the crime for which he is actually sentenced by a jury of his peers.
There is no dispute concerning what occurred in 1987. The appellant entered a guilty plea, was given a probationary sentence of five years, and was required to execute a written contract regarding the conditions of his probation. He also served ninety days in the Mississippi County jail. Furthermore, he was required to pay restitution and court costs. A document, which was entitled “Judgment, Commitment, Order of Probation, or Suspending Imposition of Sentence,” was entered after the guilty plea in 1987. Although the maximum term to which the appellant could have been sentenced at the time for a Class B felony was twenty years, the trial court nevertheless stated that a violation of the terms of probation would result in a possible sentence of fifty years.
It is generally understood that penal statutes are strictly construed in favor of an accused and will not be imposed in the absence of the clearly expressed will by the lawmakers. State v. Bocksnick, 268 Ark. 74, 593 S.W.2d 176 (1980). As we stated in Weber v. State, 250 Ark. 566, 466 S.W.2d 257 (1971): “[Cjriminal statutes are strictly construed, and nothing can be added or taken away from the precise or express language of the Act.”
It appears that we have returned to the problem that faced us in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). Every time the legislature enacts a law and it starts functioning well, some complaining judge, prosecutor, or citizen pressures the General Assembly to change it. The impression is created, through an orchestrated campaign of fear, that unless the law is changed, the criminals will take over the country. By the time the revision reaches the bench and bar, someone else has persuaded the legislature to change it again. Sometimes this court contributes to the confusion by changing our rules too frequently. We need some stability in the law and the sentencing procedure as well as consistency in judicial rules and opinions.
At the time of the petitioner’s sentencing in 1987, he could have been sentenced to imprisonment as authorized by Ark. Code Ann. §§ 5-4-401 — 5-4-404; or probation as authorized by §§ 5-4-301 — 5-4-311; or the payment of a fine as authorized by §§ 5-4-201 — 5-4-204; or imprisonment and the payment of a fine as provided in § 5-4-104(d) (1987). The court could have, in addition or alternatively suspended the execution of the sentence or suspended imposition of the sentence.
It is clear from the record that the court sentenced the appellant pursuant to Ark. Code Ann. § 16-90-115(a)(2) (1987) in the 1987 matter. That section authorizes release after sentencing and in part states:
Suspension of execution of sentence means the procedure whereby a defendant who pleads guilty to, or is found guilty of, a criminal offense is released by the court after pronouncement of sentence.
The appellant was released on probation. At any time during the probation period the probationer may be arrested for violation of probation occurring during the probation period. If a probationer is arrested he shall be taken as “speedily as possible” before the court having jurisdiction over him. “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.” Ark. Code Ann. § 16-93-402 (1987). When the imposition of a sentence has been suspended, upon breach of the terms of probation, the trial court has the right to impose the original sentence as announced. Rutledge v. State, 263 Ark. 300, 564 S. W.2d 511 (1978). It does not matter that several years may have passed when a revocation occurs. Any sentence which could have been imposed originally may be imposed if the sentence was not pronounced at the beginning. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980).
A sentence is controlled by the statute in effect at the date of the commission of the crime. Ark. Const., art. 2, § 17. The courts have the authority to suspend imposition of sentence and place the defendant on probation. The court cannot, however, sentence the accused at a revocation hearing to a second sentence for the commission of a separate crime. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981).Thatis exactly whathas happened in the case before us. In Easley we quoted from Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981), where we noted that we held in both Maddox v. State, 247 Ark. 553, 446 S.W.2d 210 (1969), and Cantrell v. State, 258 Ark. 833, 529 S.W.2d 136 (1975), that “where the plea of guilty was accepted a later revocation could not exceed the probation period. Here, the plea was accepted and the term of probation was five years. Consequently, a later suspended sentence for ten years was improper.” (Emphasis in original.) Sentencing procedures are controlled by statute. Culpepper v. State, supra.
There is a vast distinction between “suspension of imposition” of a sentence and “suspension of execution” of a sentence. The sentence imposed upon the appellant was for a period of ninety days in jail with the balance of the five years on probation. He was also required to pay a fine and probation costs. Although the court may have intended either to suspend “execution” of the sentence, or suspend “imposition” of the sentence, it did not do so. The sentence was executed at the time appellant served his jail sentence and paid a fine or costs. After a sentence has been placed in execution, the court cannot impose a greater sentence than was originally imposed. See Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), where we stated: “Once a valid sentence is put into execution the trial court is without jurisdiction to modify, amend or revise it.” See also, Culpepper, McGee, and Rutledge, supra.
The court could have properly revoked the five year probationary sentence and required appellant to serve the balance of the sentence. It could not, however, legally sentence the appellant for aggravated robbery without benefit of a trial by jury.