Robinson v. State

Tom Glaze, Judge.

In this revocation case, appellant raises one issue: The trial judge erred in revoking appellant’s suspended imposition of sentence in violation of his constitutional right to due process because appellant was not given notice of the basis for his revocation nor was he afforded a meaningful opportunity to be heard on it. We agree and therefore reverse this cause for further proceedings.

On September 27, 1982, the appellant entered a guilty plea to two counts of forgery and was given a five-year suspended imposition of sentence conditioned upon his not violating any law or the court’s written rules of conduct. On February 14, 1984, appellant was charged as a habitual offender based on one count of robbery and one count of misdemeanor theft by receiving. As a result of these new charges, the State also petitioned to revoke appellant’s suspended imposition of sentence. On March 6, 1984, the trial court, at the close of the State’s case, directed a verdict in favor of appellant, acquitting him of the robbery and theft by receiving charges. Immediately following appellant’s acquittal, the court, without objection by appellant, heard the State’s revocation petition. At that hearing, the State’s only additional witness was the court’s probation officer through whom the State introduced a copy of the rules and conditions previously given appellant. Both sides rested; the court then revoked the appellant’s suspended imposition of sentence, finding him guilty of third degree battery.

After the court’s decision to revoke, the following dialogue ensued:

MR. SIMPSON (Appellant’s Attorney): I think the defendant [appellant] would like to ask you a question, your Honor.

THE COURT: All right.

DARRELL ROBINSON [Appellant]: Who have I supposed to hit and assaulted, your Honor?

THE COURT: Mr. Mohammad.

DEFENDANT [Appellant]: Who?

THE COURT: Mr. Mohammad has testified that you hit him and so has his employee, Ms. Ruple.

DEFENDANT [Appellant]: Did he testify that he hit me first?

THE COURT: No sir.

DEFENDANT [Appellant]: Well, I got marks and bruises on my body that this man struck me first.

THE COURT: The only thing I have to deal with here is the evidence that has been produced before this court.

DEFENDANT [Appellant]: But I ain't been charged with no assault and battery.

THE COURT: You don’t have to be charged with assault and battery in order for me to revoke you. You are not to do anything, commit any offense that is punishable by law. When you struck Mr. Mohammad.

DEFENDANT [Appellant]: After he hit me.

THE COURT: There is no evidence that he hit you.

DEFENDANT [Appellant]: There is no evidence that I hit him.

THE COURT: Yes there is. There is evidence from Ms. Ruple, and Mr. Mohammad. There is no evidence whatsoever that I heard in this case today that he struck you. That will be the ruling of the court. You have 30 days in which to file a notice of appeal and designation of record.

On appeal, appellant contends that the State’s petition for revocation set out the crimes of robbery and theft by receiving and that it was only after hearing the evidence that the judge revoked appellant’s probation, finding he had committed third degree battery. The State responds by arguing that battery is a lesser included offense of robbery.¹ Thus, since appellant’s robbery charges included the same proof needed to prove battery, the State argues the appellant’s contention that he was given no notice of the battery charge is without merit.

We reject the State’s argument. As we pointed out in Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984), battery is not a lesser included offense of robbery. Here, the court found the appellant committed third degree battery under Ark. Stat. Ann. § 41-1603(1)(a) (Repl. 1977). Section 41-1603(l)(a) provides that a person commits battery in the third degree if with the purpose of causing physical injury to another person, he causes physical injury to any person. Appellant was charged with violating Ark. Stat. Ann. § 41-2103(1) (Repl. 1977), robbery, which is consummated if with the purpose of committing a theft or resisting apprehension immediately thereafter, a person employs or threatens to immediately employ physical force upon another. Clearly, third degree battery requires proof of physical injury while robbery calls for the employment of physical force with no physical injury necessary.²

Appellant’s case is based primarily upon Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973). In fact, Arkansas’ procedures for probation revocation hearings set out in Ark. Stat. Ann. § 41-1209 (Repl. 1977), are designed to comply with the Gagnon decision which extends to such proceedings the same due process requirements that earlier had been applied to parole revocation proceedings by the Supreme Court in Morrissey. Under such procedures, a probationer is entitled to: (1) notice of the alleged violations of probation, (2) an opportunity to appear and (3) present evidence in his own behalf, (4) a conditional right to confront adverse witnesses, (5) an independent decision maker and (6) a written report of the hearing.

Appellant argues that the State said nothing to indicate that battery would be urged as the basis for his revocation until after the revocation hearing and before he was sentenced to three years imprisonment. At his trial on the robbery and theft charges, appellant limited his cross-examination of the State’s witnesses to these two charges. As previously noted, he moved for and was granted a directed verdict on these charges, and he determined it unnecessary to offer any testimony at the revocation hearing, assuming the State was relying on these same robbery and theft charges as the basis of its revocation petition. Appellant contends that had he known battery would be the basis for his revocation, he could have raised the defense of justification — which at the conclusion of the revocation hearing is reflected by his remarks that Mr. Mohammad hit him first. Appellant claims he was not afforded an opportunity to cross-examine any witnesses concerning an alleged battery charge nor did he know to present evidence to refute or to defend against such a charge.

Appellant’s arguments have merit. We find his notice argument similar to that affirmed in Hawkins v. State, 251 Ark. 955, 475 S.W.2d 887 (1972).³ In Hawkins, the State filed a revocation petition based upon the single ground that the defendant was guilty of grand larceny. The trial court revoked Hawkins’ suspension, not upon the grand larceny charge, but upon a finding that she had been drinking whiskey, possessed whiskey, engaged in prostitution or adultery and lived with another woman whom the court found to be dishonest. On appeal, Hawkins contended, as does appellee here, the State did not give her proper notice of the reasons or basis for its petition to revoke her suspension. In reversing and setting aside the trial court’s order, the Supreme Court said:

In the case at bar the petition for revocation was based soley upon the assertion that the defendant had committed grand larceny. At the hearing, however, the court permitted the prosecution to go far beyond its own pleading and to offer proof of the various forms of misconduct that were ultimately found by the court to have existed. That procedure is fundamentally unfair, for a defendant cannot properly prepare for the hearing without knowing in advance what charges of misconduct are to be investigated as a basis for the proposed revocation of the probation.

Id. at 956-57, 475 S.W.2d at 888 (emphasis supplied).

In the instant case, appellant had no opportunity to prepare to defend himself against a battery charge because that charge was not even mentioned until both the State and the appellant had rested. Such failure of due process cannot be remedied by this Court’s placing the burden upon the appellant by suggesting that after the trial court had used third degree battery to revoke his suspension, he immediately should have recalled all the State’s witnesses to recross-examine them concerning this newly-disclosed charge.⁴ It is the State’s burden to properly notify the appellant regarding the basis upon which it seeks to revoke his suspension, and this Court is unable to relieve the State of that burden by requiring the appellant to present a “last minute” defense to a charge which could have been duly set forth in the State’s revocation petition. This is especially true, when as here, the trial court had already expressed in unqualified terms its position that appellant did not have to be charged with battery in order for it to revoke his suspension. Without due notice by the State of its basis for seeking to revoke suspension, a defendant is left to speculate upon what charges might emanate from the State’s evidence on the day of the revocation hearing. Procedural due process cannot be met by allowing the State to proceed in the fashion it suggests.

Reversed and remanded.

Cracraft, C.J., and Mayfield, J., dissent.

1 Although the State does not argue the point, the dissent suggests affirmance in part because appellant failed to properly raise the notice issue. Because the appellant, himself, made known in clear terms that he had not been charged with battery after the court so found, the majority finds no merit in the suggestion that this issue was not raised.

2 The State cites Sanders v. State, 279 Ark. 32, 648 S.W.2d 451 (1983) in support of its argument that battery is a lesser included offense of robbery. Sanders, however, involved the offenses of aggravated robbery and first degree battery which are inapposite here.

3 The Supreme Court decided this case prior to the United States Supreme Court’s Morrissey and Gagnon cases and before enactment of Arkansas’ statutory revocation procedures compiled in Ark. Stat. Ann. § 41-1209. Nonetheless, Hawkins has never been overruled and the due process procedures required by our Supreme Court in Hawkins are clearly consistent with those requirements set forth in § 41-1209.

4 In oral argument, it was suggested that after the appellant was told he was guilty of battery, he should have offered to call witnesses or to testify in order to contradict such charge.