Reese v. State, CA

• Decision Date: 09 November 1988
• Docket Number: No. CA,CA
• Citation: 26 Ark.App. 42,759 S.W.2d 576
• Parties: Donald Ray REESE, Appellant, v. STATE of Arkansas Appellee. CR 88-43
• Court: Arkansas Court of Appeals

Page 576

759 S.W.2d 576

26 Ark.App. 42

Donald Ray REESE, Appellant, v. STATE of Arkansas Appellee.

No. CA CR 88-43.

Court of Appeals of Arkansas Division II,

Nov. 9, 1988.

James R. Marschewski, Ft. Smith, for appellant.

R.B. Friedlander, Sol. Gen., Little Rock, for appellee.

JENNINGS, Judge.

Donald Ray Reese pled guilty to theft of property on January 13, 1984. The court suspended imposition of sentence for a period of 5 years, conditioned upon good behavior and the payment of a $500.00 fine and $4,000.00 in restitution, payable at the rate of $100.00 per month.

On August 5, 1987, the court conducted a hearing on the State's petition to revoke appellant's suspended sentence, the fourth such petition filed since the date of the plea. At that hearing the State offered into evidence, without objection, the appellant's payment record, and the appellant then testified. The trial court found an inexcusable violation of the condition requiring appellant to make monthly payments toward the restitution and fine, revoked his suspended sentence, and sentenced him to 17 months in the Department of Correction. On appeal, it is argued that the trial court's judgment was against the preponderance of the evidence. We find no error and affirm.

Arkansas Statutes Annotated § 41-1208 (Repl.1977) (now Ark.Code Ann. § 5-4-309 (1987)) provides that if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with the conditions of his suspension, it may revoke that suspension. In a revocation proceeding the State must prove its case by a preponderance of the evidence. Smith v. State, 9 Ark.App. 55, 652 S.W.2d 641 (1983). On appeal we do not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Brewer v. State, 274 Ark. 38, 621 S.W.2d 698 (1981). In testing the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Phillips v. State, 17 Ark.App. 86, 703 S.W.2d 471 (1986).

Preliminarily, appellant argues that the State has, in effect, shifted the burden of proof to the appellant by merely introducing the record of non-payment, and resting. We agree that where the alleged violation of the conditions of suspension or probation is a failure to make payments as ordered, the State has the burden of proving by a preponderance of the evidence that the failure to pay was inexcusable. See Cavin v. State, 11 Ark.App. 294, 669 S.W.2d 508 (1984). The burden of proof does not shift. However, once the State has introduced evidence of nonpayment, the burden of going forward does shift to the defendant to offer some reasonable excuse for his failure to pay. See Brown v. State, 10 Ark.App. 387, 664 S.W.2d 507 (1984). To hold otherwise would place a burden upon the State which it could never meet--it would require the State, as part of its case in chief, to negate any possible excuses for non-payment.

The evidence offered by the State at the August hearing showed that appellant had paid a total of $200.00 during 1986 and a total of $100.00 in 1987. The record reflects that appellant was hospitalized for several days for depression in late February,...