Wade v. State
| Decision Date | 11 November 1998 |
| Docket Number | No. CA,CA |
| Parties | Ted Byron WADE, Appellant, v. STATE of Arkansas, Appellee. CR 98-447. |
| Court | Arkansas Court of Appeals |
Dale E. Adams, Little Rock, for Appellant.
Winston Bryant, Atty. Gen., Brad Newman, Asst. Atty. Gen., Little Rock, for Appellee.
October 21, 1996, appellant Ted Wade pleaded guilty to a charge of first-degree On assault and was sentenced to twelve months' probation. In addition to the requirement that he obey all federal, state, and local laws, Wade was also required to perform 100 hours of community service, and to complete an alcohol-rehabilitation program within six months of sentencing. On May 23, 1997, the prosecuting attorney filed a petition for revocation alleging that Wade violated the terms of his probation by failing to complete his court-ordered community service, and because he tested positive for methamphetamine on May 8, 1997. An amended petition for revocation was filed August 26, 1997, that alleged that Wade violated the terms his probation by committing domestic battery on August 2, 1997, and for failure to complete his court ordered community service. After a hearing, the trial court found that Wade failed to complete his court ordered community service, revoked his probation, and imposed a sentence of twelve months in the Pulaski County detention center. The State presented no evidence as to the alleged use of methamphetamine, and the trial court explicitly declined to find that Wade committed domestic battery after the victim, Wade's wife, testified that he did not beat her. Wade's sole argument on appeal is that the trial court erred by revoking his probation due to his failure to complete his community service by the deadline imposed by the probation office. Because the requirement that he complete his community service by the date imposed by the probation office, rather than by the end of his probation period, was not in writing, we reverse.
To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). On appellate review, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Thus, the burden on the State is not as great in a revocation hearing. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position. Id.
Wade contends that the trial court erred by revoking his probation due to his failure to complete 100 hours of community service by the deadline imposed by the probation office. Wade argues that the court, rather than the probation office, is required to specify the terms and conditions of his probation. Arkansas Code Annotated section 5-4-303 (Repl.1997) provides:
(a) If the court suspends imposition of sentence on a defendant or places him on probation, it shall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life.
...
(e) If 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 addition to the requirement that he obey all federal, state, and local laws, the terms of Wade's probation required, among other things, that he complete an alcohol-rehabilitation program within six months of sentencing, and that he perform 100 hours of community service. Although the order did not explicitly restrict the time in which Wade was to complete his service, his work-program adviser for the Department of Community Punishment required that he complete the service by working weekends between January 18, 1997, and April 30, 1997. During testimony, the adviser acknowledged that the probation order did not explicitly provide that Wade complete the service by April and that the length of his probation was through October 1997. However,...
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