Givan v. State , 2013 Ark. App. 701 ( 2013 )

Cite as 2013 Ark. App. 701
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-12-70
Opinion Delivered December 4, 2013
RECO GIVAN
APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
[NOS. CR-2006-2907; CR-2007-27]
V.
HONORABLE RHONDA K. WOOD,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
JOHN MAUZY PITTMAN, Judge
Appellant was placed on probation for a period of five years following his 2007
convictions for residential burglary, theft of property, and violation of the Controlled
Substances Act. The conditions of his probation required him to refrain from committing
any offense punishable by imprisonment; to report any arrest to the probation office within
twenty-four hours; and to pay court costs, fines, and fees. A revocation petition asserting
several violations of the conditions of his probation1 was filed in 2011. After a hearing,
appellant’s probation was revoked, resulting in a sentence to a term of imprisonment. On
appeal, appellant argues that the evidence was insufficient to support a finding that he had
knowledge of the conditions of his probation; that the trial court erred in exercising
1
E.g., failure to pay court costs and fines; failure to refrain from using controlled
substances; violating Arkansas law by committing the new offense of possession of a
controlled substance with intent to deliver; and failure to report the resulting arrest to his
probation officer within twenty-four hours.
Cite as 2013 Ark. App. 701
jurisdiction because appellant had been convicted in a different division of circuit court; that
the trial court erred in denying his motion to dismiss based on alleged discovery violations;
that appellant was denied due process because the State failed to inform him of the specific
acts that he was alleged to have committed in violation of the conditions of his probation;
that the trial court lacked jurisdiction to hold a revocation hearing more than sixty days
following his arrest; and that the trial court lacked jurisdiction to revoke his probation for
failure to comply with Ark. Code Ann. § 5-4-309. We affirm.
We first address the jurisdictional issues. There is no merit to appellant’s argument
that the trial court lacked jurisdiction to revoke because he was convicted in a different
court. Although it is true that probation may be revoked only after a revocation hearing
conducted by the court that placed the defendant on probation, Ark. Code Ann. § 16-93-
307(b)(2) (Supp. 2013) (formerly Ark. Code Ann. § 5-4-310(b)(2)), sentencing here was in
Faulkner County Circuit Court, Fourth Division, and revocation was in Faulkner County
Circuit Court, Fifth Division. Because judges of different divisions within a judicial circuit
have commutable authority, the trial court had jurisdiction to revoke appellant’s probation.
Nation v. State, 283 Ark. 250, 674 S.W.2d 939 (1984).
Nor is there merit to appellant’s argument that the trial court’s failure to hold the
revocation hearing within sixty days of his arrest deprived the trial court of jurisdiction. No
authority is cited for this proposition. Furthermore, the supreme court has squarely held that
the purpose of the sixty-day requirement of Ark. Code Ann. § 16-93-307(b)(2) (Supp. 2013)
is to assure that a defendant who has been arrested for violation of probation is not jailed for an
2
Cite as 2013 Ark. App. 701
unreasonable time awaiting his revocation hearing; a defendant who is incarcerated on
another charge is not prejudiced if more than sixty days elapses before his revocation hearing.
Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994). Here, appellant was in custody on
a parole violation during the pendency of the probation revocation and therefore suffered
no prejudice.
Also with respect to jurisdiction, appellant argues that the trial court lacked
jurisdiction to revoke his probation because the State failed to file a petition for revocation
or issue a warrant comporting with Ark. Code Ann. § 5-4-309(e) and (f) (Supp. 2009). Prior
to its repeal,2 section 5-4-309(a) through (f) read:
(a)(1) At any time before the expiration of a period of suspension or probation, a court
may summon a defendant to appear before it or may issue a warrant for the defendant’s
arrest.
(2) The warrant may be executed by any law enforcement officer.
(b) At any time before the expiration of a period of suspension or probation, any law
enforcement officer may arrest a defendant without a warrant if the law enforcement
officer has reasonable cause to believe that the defendant has failed to comply with a
condition of his or her suspension or probation.
(c) A defendant arrested for violation of suspension or probation shall be taken
immediately before the court that suspended imposition of sentence, or if the
defendant was placed on probation, before the court supervising the probation.
(d) If a court finds by a preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his or her suspension or probation,
the court may revoke the suspension or probation at any time prior to the expiration
of the period of suspension or probation.
2
See Act 570 of 2011. Former section 5-4-309 now appears at Ark. Code Ann. § 16-
93-308 (Supp. 2013).
3
Cite as 2013 Ark. App. 701
(e) A finding of failure to comply with a condition of suspension or probation as
provided in subsection (d) of this section, may be punished as contempt under §
16-10-108.
(f) A court may revoke a suspension or probation subsequent to the expiration of the
period of suspension or probation if before expiration of the period:
(1) The defendant is arrested for violation of suspension or probation;
(2) A warrant is issued for the defendant’s arrest for violation of suspension or
probation;
(3) A petition to revoke the defendant’s suspension or probation has been filed
if a warrant is issued for the defendant's arrest within thirty (30) days of the date
of filing the petition; or
(4) The defendant has been:
(A) Issued a citation in lieu of arrest under Rule 5 of the Arkansas Rules of
Criminal Procedure for violation of suspension or probation; or
(B) Served a summons under Rule 6 of the Arkansas Rules of Criminal
Procedure for violation of suspension or probation.
(Emphasis added.) Here, appellant argues that jurisdiction was lacking because no warrant
for revocation was issued and served under subsection (f). This subsection, however, deals
with the requirements bearing upon the court’s power to revoke after the probationary
period has expired. It has no application here because appellant’s probation was not revoked
after the probationary period expired. He was, he admits, convicted on March 14, 2007;
thus, his five-year probationary period would not end until March 14, 2012. Appellant’s
probation was revoked by an order filed October 6, 2011, well within the probationary
period.
4
Cite as 2013 Ark. App. 701
We next address appellant’s argument that the evidence was insufficient to support a
finding that he had knowledge of the conditions of his probation. Because the burden on
the State is not as great in a revocation hearing as in a criminal trial, evidence that is
insufficient for a criminal conviction may be sufficient for revocation of probation or
suspended sentence. Patterson v. State, 99 Ark. App. 136-A, 257 S.W.3d 921 (2007). On
appellate review of an order revoking probation, the trial court’s findings will be upheld
unless they are clearly against the preponderance of the evidence. Id. The determination of
a preponderance of the evidence turns on questions of credibility and weight to be given to
the testimony, and we therefore defer to the trial judge’s superior position. Id.
The record shows that in June 2011 Conway police officers, responding to a report
of three black men fighting, arrived on the scene but saw no fighting. When the officers
attempted to speak with the men present, appellant backed away, reached into his pockets,
and threw away cash and plastic baggies containing approximately sixteen grams of cocaine.3
Appellant was then arrested. Appellant’s probation officer testified at the revocation hearing
that appellant did not report this arrest within twenty-four hours, as required by the
conditions of his probation, and that appellant had made no payments of fines and costs since
May 2009.
Appellant’s argument that the State failed to prove that he knew the conditions of his
probation is premised on the fact that he did not sign the conditions of probation.
3
Appellant also argues this evidence was the fruit of the poisonous tree and should
have been suppressed. We do not address this argument because it was neither raised nor
ruled on below. Green v. State, 2013 Ark. App. 63.
5
Cite as 2013 Ark. App. 701
However, although there is a statutory requirement to provide a defendant with a written
statement explicitly setting forth the conditions under which he or she is being released, there
is no corollary requirement that the defendant sign a written acknowledgment when he
receives this written statement or that one be introduced at a revocation hearing. Patterson
v. State, 99 Ark. App. 136-A, 257 S.W.3d 921 (2007). Furthermore, appellant does not assert
that he, in fact, was unaware that criminal possession of cocaine was a violation of his
probationary terms or that he was required by those terms to pay fines and report to his
probation officer. Given the evidence that appellant did in fact pay fines and fees until May
2009 and did regularly report as required by the terms of his probation, we hold that the trial
court did not clearly err in finding that he was aware of the conditions of his probation. Nor
do we agree with appellant’s argument that the revocation petition provided him by the State
was not sufficiently specific to provide him notice of the probationary conditions that he was
charged with violating. The petition to revoke alleged violation of Arkansas law, failure to
abstain from illegal substances, failure to pay fines and fees, and failure to report. This was
accompanied by a revocation worksheet detailing appellant’s arrest for possession of
controlled substances with intent to deliver. Specifics of the failure to pay fines and report
as directed were also stated on the worksheet. We hold that this constituted adequate notice
of the alleged violations to comport with due process and Ark. Code Ann. § 16-93-
307(b)(3)(C) (Supp. 2013).
Finally, appellant argues that the trial court erred in denying his motion to dismiss
based on an alleged discovery violation by the State. We find no reversible error. We do
6
Cite as 2013 Ark. App. 701
not reverse in the absence of demonstrated prejudice, see Burton v. State, 314 Ark. 317, 862
S.W.2d 252 (1993), and here no possible prejudice could have resulted from any failure to
provide discovery because the trial court granted a continuance to another trial date to allow
appellant’s attorney to familiarize herself with the witness list that she claimed she did not
receive.
Affirmed.
HARRISON and WYNNE, JJ., agree.
Teresa Bloodman, for appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
7