Rudd v. State of Arkansas, 01-431

• Citation: 61 S.W.3d 885
• Decision Date: 05 December 2001
• Docket Number: 01-431
• Parties: CARL RUDD, APPELLANT V. STATE OF ARKANSAS, APPELLEE CACR 01-431 Arkansas Court Of Appeals 5 December 2001 APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT, , HONORABLE FLOYD G. ROGERS, CIRCUIT JUDGE AFFIRMED John B. Robbins, Judge. Appellant Carl Rudd appeals the revocation of his suspended sentence by the Crawford County Circuit Court, for which he was sentenced to ten years in the Arkansas Department of Correction. Appellant argues on appeal that (1) the circuit court lacked subject-matter jurisdiction to revoke his suspended sentence due to the improper passage of a constitutional amendment, and (2) there was insufficient evidence upon which to support revocation. We disagree and affirm. Rudd pleaded nolo contendere to conspiracy to deliver methamphetamine and agreed to ten years of suspended imposition of sentence with one year of supervised probation and payment of a $20 monthly probation fee. As part of his agreed conditions, Rudd was required to attend drug counseling that would be monitored by the adult probation office by weekly reports to his probation officer, his driver's license was suspended for six months, and he was also subject to the condition of not violating any law punishable by imprisonment. The judgment and commitment order was filed of record on
• Court: Arkansas Court of Appeals

CARL RUDD, APPELLANT

V.

STATE OF ARKANSAS, APPELLEE

CACR 01-431

Arkansas Court Of Appeals

5 December 2001

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT, [NO. CR 2000-116], HONORABLE FLOYD G. ROGERS, CIRCUIT JUDGE

AFFIRMED

John B. Robbins, Judge.

Appellant Carl Rudd appeals the revocation of his suspended sentence by the Crawford County Circuit Court, for which he was sentenced to ten years in the Arkansas Department of Correction. Appellant argues on appeal that (1) the circuit court lacked subject-matter jurisdiction to revoke his suspended sentence due to the improper passage of a constitutional amendment, and (2) there was insufficient evidence upon which to support revocation. We disagree and affirm.

Rudd pleaded nolo contendere to conspiracy to deliver methamphetamine and agreed to ten years of suspended imposition of sentence with one year of supervised probation and payment of a $20 monthly probation fee. As part of his agreed conditions, Rudd was required to attend drug counseling that would be monitored by the adult probation office by weekly reports to his probation officer, his driver's license was suspended for six months, and he was also subject to the condition of not violating any law punishable by imprisonment. The judgment and commitment order was filed of record on September 22, 2000. On January 5, 2001, the State petitioned to revoke Rudd's suspended sentence, alleging that Rudd had failed to report to the adult probation office as required, had failed to pay his probation fees, and had committed a new offense, terroristic threatening, on or about November 21, 2000. After a hearing, the trial court found that appellant failed to comply with the orders, specifically regarding drug rehabilitation, performing community service, and violating the law by forcibly taking money from the victim who was allegedly the subject of terroristic threatening.

We consider sufficiency of the evidence before addressing other alleged trial errors. Williams v. State, 338 Ark. 97, 106, 991 S.W.2d 565 (1999). We do so in order to preserve a defendant's right to freedom from double jeopardy. Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). See also Burris v. State, 330 Ark. 66, 70, 954 S.W.2d 209 (1997).

We address the sufficiency of the evidence in support of the State's petition for revocation, contrary to the State's assertion that this issue is not preserved for appellate review. The State argues that because Rudd failed to move for directed verdict in compliance with Ark. R. Crim. P. 33.1, we cannot do so. We disagree. Our supreme court recently decided in Barbee v. State, 346 Ark. 185, ___ S.W.3d ___ (2001), that a defendant in a revocation proceeding is not required to comply with Ark. R. Crim. P. 33.1 regarding motions for directed verdict in order to preserve the issue of the sufficiency of the evidence for review, overruling Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000), which had held otherwise.

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 (Repl. 1997); Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989). Of course, the State bears the burden of proof. Petty v. State, 31 Ark. App. 119, 788 S.W.2d 744 (1990). In order for appellant's suspended sentence to be revoked, the State need only prove that the appellant committed one violation of the conditions. Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987). When appealing a revocation, the appellant has the burden ofshowing that the trial court's findings are clearly against the preponderance of the evidence. Ark. Code Ann. 5-4-309(d) (Repl.1997); Tipton v. State, 47 Ark. App. 187, 887 S.W.2d 540 (1994); Russell v. State, 25 Ark. App. 181, 753 S.W.2d 298 (1988).

With these enunciated rules to guide our review, we examine the evidence presented against appellant Rudd at the revocation hearing. Appellant's probation officer, Jeffrey David Landers, testified that appellant was supposed to report to him on a weekly basis but that appellant reported only twice between pronouncement of his sentence to probation, September 11, 2000, and the date of the revocation hearing, January 22, 2001. Mr. Landers further testified the appellant had failed to pay his probation fees as ordered.

The alleged victim of the terroristic threat testified that appellant forcibly took $60 from her and asked her what she was going to do about it. A few days later, the victim saw appellant again and the two got into an argument, yelling at one another over the money, and appellant threatened to kill her.

Appellant testified in his own defense. Appellant did not contest that he had failed to report to his probation officer as required or that he had failed to pay his probation fees; he admitted as much. Appellant contested that he committed terroristic threatening. When appellant testified, he stated that he did take the victim's $60 and spent it under the pretext that he was going to buy her marijuana with it. Appellant stated that they saw each other again about five days later and argued about the money but that he had not ever threatened to kill her. The trial court announced that it was revoking appellant's probation at the conclusion of the hearing.

Appellant bases his argument on the sufficiency of the evidence as to the proof that he committed terroristic threatening. However, the State need prove only one violation of a condition of probation, which it accomplished and which was not contested but admitted. See Ramsey v. State, 60 Ark. App. 206, 209, 959 S.W.2d 765, 767 (1998). There was sufficient evidence upon which to revoke appellant's probation.

Appellant's alternative argument on appeal is that the trial court lacked jurisdiction ¹ to enter a sentence on his plea of nolo contendere to conspiracy to deliver methamphetamine, the underlying offense for his suspended sentence and probation that was later revoked. Appellant bases this argument on his assertion that Amendment 21 to the Arkansas Constitution was not adopted in compliance with constitutional requirements, and thus the trial court lacked the jurisdiction to prosecute him, as a defendant, upon an information filed by the prosecuting attorney, but could have only proceeded by a grand-jury indictment. Thus, appellant argues, because he was charged by information, an invalid means to be charged, the trial court lacked jurisdiction to convict him on his nolo contendere plea and, therefore, lacked jurisdiction to revoke any probation based upon that conviction.

The State counters by pointing out that if appellant's argument is that Amendment 21 is unconstitutional, then his argument is barred for failure to raise it to the trial court. With this, we agree. See, e.g., Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000); Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999); Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998); Claiborne v. State, 319 Ark. 537, 893 S.W.2d 324 (1995). Even constitutional arguments are waived when they are not argued below. Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997).

While it is true, as a general proposition, that the issue of subject-matter jurisdiction may be raised at any time, even for the first time on appeal, see Pike v. State, 344 Ark. 478, 40 S.W.3d 795 (2001), and Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985), appellant's contention that the...