Richardson v. State

Citation157 S.W.3d 536,85 Ark. App. 347
Decision Date10 March 2004
Docket NumberNo. CA CR 03-1066.,CA CR 03-1066.
PartiesJeffrey Lamar RICHARDSON v. STATE of Arkansas.
CourtCourt of Appeals of Arkansas

John Henderson Bradley, Blytheville, for appellant.

Mike Beebe, Att'y Gen., by: M.W. Borkowski, Ass't Att'y Gen., Little Rock, for appellee.

ROBERT J. GLADWIN, Judge.

Appellant Jeffrey Lamar Richardson appeals from an order by the Mississippi County Circuit Court that revoked his ten-year suspended imposition of sentence on a residential burglary charge and sentenced him to five years' imprisonment with an additional five years' suspended imposition of sentence. He argues that the trial court erred in revoking his suspended imposition of sentence because he did not violate a written term or condition of his suspended sentence and that the trial court was without jurisdiction to revoke the suspended sentence prior to the commencement of the period of suspension. We affirm.

On January 15, 2003, appellant entered two guilty pleas. The first was for theft of property, for which he was sentenced to eleven years' imprisonment. The second was for residential burglary, for which he was given ten years' suspended imposition of sentence. After the trial court accepted appellant's guilty pleas and sentenced him, it allowed him to remain out of custody until the following Monday morning, January 20, 2003, at which time he was to report to the sheriff to begin serving his sentences. The court advised appellant that if he did not surrender himself when he was supposed to, he could be sentenced for an additional twenty years. The court engaged in a colloquy with appellant, making sure he understood when he should report back and how important it was that he do so.

Appellant failed to appear the following Monday. Major Jerry Arnold with the Mississippi County Sheriff's Department testified that appellant made no contact with the sheriff's office. Officer Mark Cretch with the Blytheville Police Department testified that he was aware of a warrant being issued for appellant, and that on February 20, 2003, he received information as to where appellant might be located. Officer Cretch testified that while he and his partner were driving around, he saw appellant drive by. The police initiated a stop, and as Officer Cretch was approaching the vehicle, it took off at a high rate of speed. The officer testified that they pursued the subject and saw him leave the vehicle and proceed on foot. Officer Cretch said that they continued to pursue appellant, narrowed their search to an area surrounding two houses, and eventually found appellant hiding under one of the houses.

Appellant was brought back before the court on a petition to revoke the suspended imposition of sentence that had been filed January 22, 2003. The trial court found that appellant had violated the terms and conditions of the ten-year suspension imposed in the residential burglary case, and sentenced him to five years' imprisonment with an additional five years' suspended imposition of sentence. The sentence imposed upon revocation was to be served consecutively to the eleven-year sentence that had been imposed in the theft case. Appellant appeals from the revocation of the suspended imposition of sentence.

To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark.Code Ann. § 5-4-309 (Supp.2001); Rudd v. State, 76 Ark.App. 121, 61 S.W.3d 885 (2001). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Rudd, supra. When appealing a revocation, the appellant has the burden of showing that the trial court's findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Peterson v. State, 81 Ark.App. 226, 100 S.W.3d 66 (2003). Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Id.

Appellant first argues that he did not violate a written term or condition of his suspension by not turning himself in to the sheriff's department as ordered. His argument has two parts: (1) that there was no written condition of behavior that appellant should surrender on January 20 2003, as required by Ark.Code Ann. § 5-4-303(g) (Supp.2001), and (2) that the "good behavior" and "law-abiding life" conditions of his suspension were not violated by appellant's failure to turn himself in as ordered.

Arkansas Code Annotated section 5-4-303(g) provides that "[i]f the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released." In Zollicoffer v. State, 55 Ark.App. 166, 934 S.W.2d 939 (1996), we cited the supreme court's statement in Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), that all conditions for a suspended sentence must be in writing if the suspended sentence is to be revocable, and that courts therefore...

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114 cases
  • Hanna v. State, CA CR 09–121.
    • United States
    • Court of Appeals of Arkansas
    • 2 Diciembre 2009
    ......§ 5–4–309(d) (Supp.2009). This is the general revocation statute. It applies whenever a defendant allegedly violates any condition of a probated or suspended sentence. E.g., Richardson v. State, 85 Ark.App. 347, 350–51, 157 S.W.3d 536, 538–39 (2004) (failure to surrender as ordered). In 1993, as a part of a comprehensive statute governing restitution, the General Assembly adopted restitution-specific revocation provisions. Act of 16 March 1993, No. 533, 1993 Ark. Acts 1493; ......
  • Dowty v. State
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    • Supreme Court of Arkansas
    • 23 Junio 2005
  • Sims v. State
    • United States
    • Supreme Court of Arkansas
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  • Dubois v. State, CACR07-944 (Ark. App. 5/28/2008), CACR07-944
    • United States
    • Court of Appeals of Arkansas
    • 28 Mayo 2008
    ......A suspended sentence may be revoked if the trial court finds by a preponderance of the evidence that the defendant inexcusably violated a term of that suspension. Ark. Code Ann. § 5-4-309 (Repl. 2006); Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). Revocation is justified by the violation of any one condition of suspension. Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987).         Appellant's revocation was based on his commission of a criminal offense, disorderly conduct. The ......
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