Baldridge v. State, CA
| Decision Date | 16 May 1990 |
| Docket Number | No. CA,CA |
| Citation | 31 Ark.App. 114,789 S.W.2d 735 |
| Parties | Robert C. BALDRIDGE, Appellant, v. STATE of Arkansas, Appellee. CR 89-265. |
| Court | Arkansas Court of Appeals |
Henry Morgan, Arkadelphia, for appellant.
Theodore Holder, Asst. Atty. Gen., Little Rock, for appellee.
This appeal comes to us from Clark County Circuit Court. Appellant, Robert C. Baldridge, appeals from a judgment and commitment order entered upon the state's petition to revoke, sentencing him to five years in the Arkansas Department of Correction. We reverse.
Appellant, age 17, was convicted on August 1, 1986, upon a plea of guilty to forgery in the second degree by uttering, drawing, or possessing two checks totaling $25.00. A five-year probated sentence was issued thereon on August 15, 1986, subject to certain terms and conditions. Additionally, appellant was required to pay court costs and restitution. A petition for revocation was filed September 15, 1988, alleging that appellant violated the terms of his probated sentence by failing to report to his probation officer as directed and to pay costs, restitution, and supervision fees as ordered. A hearing was set for October 3, 1988, on the petition to revoke. Pursuant to a bench warrant for appellant's arrest, he was returned to Arkansas on May 4, 1989. Appellant was arraigned and on June 5, 1989, a public defender was appointed to represent appellant. A pretrial hearing was held on June 15, 1989, at which time it was determined that the revocation hearing was set for the following day. Defense counsel objected upon the basis that the state had not complied with his motion for discovery. The hearing was continued until July 5, 1989, and the trial court found appellant in violation of the terms of his probation. Appellant's probated sentence was revoked and he was sentenced to five years in prison. Another hearing was held July 10, 1989, on appellant's motion for reconsideration and the relief sought by appellant was denied by the court. Appellant appeals from the order sentencing him to five years imprisonment.
Appellant raises the following five points for reversal: 1) The trial court erred in allowing his revocation hearing to be held beyond sixty days of his arrest; 2) the trial court erred in finding that he violated the terms of probation when the uncontroverted testimony was that he was financially unable to make his restitution payments and afford transportation to report in person; 3) the trial court erred in refusing to list the reasons for revocation in writing; 4) the trial court erred in allowing a computer printout into evidence showing alleged arrearages in fees and restitution; and 5) the trial court erred in failing to give him credit for jail time served while waiting for the revocation hearing.
We find that appellant's second argument warrants reversal and because we find error on this point, we will not address appellant's remaining points.
Appellant contends that his inability to report in person to his probation officer and to pay costs, restitution, and fees imposed as a condition of his probated sentence was due to excusable circumstances. Arkansas Code Annotated Section 5-4-309 (1987) provides, in pertinent part, as follows:
(d) If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
In a revocation proceeding, the state must prove its case by a preponderance of the evidence, Cavin v. State, 11 Ark.App. 294, 669 S.W.2d 508 (1984), and on appellate review, we do not reverse the trial court's decision unless it is clearly against the preponderance of the evidence. Phillips v. State, 25 Ark.App. 102, 752 S.W.2d 301 (1988). Once the state introduces evidence of non-payment in a revocation hearing, the defendant then bears the burden of going forward with some reasonable excuse for his failure to pay. Reese v. State, 26 Ark.App. 42, 759 S.W.2d 576 (1988).
At the revocation hearing in the case at bar, the state offered evidence through Wesley Hathcoat, appellant's probation officer, that appellant was in arrears in paying his various fines and fees, and that he also failed to appear in person to his probation officer. Evidence was presented that in three years appellant paid $150.00 in restitution and $60.00 in fees although the terms of his probation required him to pay $87.25 in court costs, $298.53 in restitution, and $15.00 per month in supervisory fees. Mr. Hathcoat stated that he had no objection to appellant moving to Texas and that he was...
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