Whitener v. State, No. CA CR 06-106.

• Court: Court of Appeals of Arkansas
• Writing for the Court: Terry Crabtree
• Citation: 241 S.W.3d 779
• Docket Number: No. CA CR 06-106.
• Decision Date: 25 October 2006
• Parties: Dana WHITENER, Appellant, v. STATE of Arkansas, Appellee.

241 S.W.3d 779 Dana WHITENER, Appellant,
v.
STATE of Arkansas, Appellee. No. CA CR 06-106. Court of Appeals of Arkansas. October 25, 2006.

[241 S.W.3d 780]

Killough Law Firm, by: Larry Killough, Jr., Searcy, AR, for appellant.

Mike Beebe, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., Little Rock, AR, for appellee.

TERRY CRABTREE, Judge.

The White County Circuit Court revoked the probation of Dana Whitener and sentenced her to five years in the Arkansas Department of Correction. The court ordered that three years of the sentence be suspended, and that she be transferred to the Regional Correction Facility for twenty-four months to participate in the drug program there. On appeal appellant argues that there was insufficient evidence to sustain a finding that she inexcusably violated the terms of her probation, because the terms and conditions of her probation were not introduced into evidence. The State responds that because the argument was not raised below, it is not preserved for appeal. We agree and affirm.

In August 2002, appellant entered into a plea bargain with the prosecution in the White County Circuit Court. As part of the negotiated plea, she pled guilty to a violation of the Arkansas Hot Check Law. She was placed on supervised' probation for three years and ordered to pay a fine of $1000, restitution of $1056.29, and court costs of $150. Pursuant to Ark.Code Ann. § 5-4-303 (Rep1.2006), if a court suspends imposition of sentence on a defendant or places him or her on probation, the court shall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life. The statute further provides that every suspension or probation will contain the express condition, that the defendant not commit an offense punishable by imprisonment during the period of suspension or probation. As required by statute, appellant was given a written copy of the terms and conditions of her probation which contained, among other requirements, the provision that she not commit a criminal offense punishable by imprisonment. She signed the acknowledgment of the terms and conditions on August 28, 2002, and a copy of the terms and conditions was made part of the court's file. A petition to revoke was filed on March 15, 2005, alleging that appellant violated the terms of her probation by her failure to report, delinquency on court ordered payments, failure to refrain from the use of illegal controlled substances, being out of state without permission, and being found guilty of driving under the influence and negligent minor care in the state of Nebraska and not reporting the offense to her probation officer.

241 S.W.3d 781

A hearing on the petition was held April 28, 2005.

At the hearing Mary Rudisill, a probation officer for White County, testified that she received a call from an officer in Nebraska informing her that appellant's transfer to that state was being denied due to new charges appellant received in Nebraska. Appellant was charged in Nebraska with driving under the influence and, negligent minor care, and she was sentenced to ten days in jail, six months driver's license suspension and a $400 fine. Ms. Rudisill testified that appellant had completed her sentence in the state of Nebraska. Appellant testified that she did receive a DUI in Nebraska, and that her daughter was riding in the car with her when she was arrested. The court documents from Nebraska were admitted into evidence without objection.

Ms. Rudisill also testified that she performed a home visit at appellant's home, and appellant gave her permission to come inside. Appellant indicated to Ms. Rudisill the bedroom in which she was staying, and on the nightstand in plain view was drug paraphernalia. A field test of a light bulb and plate revealed a positive result for methamphetamine. There was also a glass pipe, marijuana seeds in a plastic bag, three yellow tablets in a plastic bag, scrub pads, and a torch lighter. Ms. Rudisill testified that appellant tested positive for drugs on many occasions. During appellant's testimony she denied that the drug paraphernalia belonged to her, and she denied being on drugs; however, when escorted from the courtroom to take a drug test, she admitted that she would test positive for methamphetamine. Appellant's confession was admitted without objection. The trial court revoked appellant's probation, finding that there had been a violation of the terms of probation.

Appellant does not dispute the fact that she was on probation, rather she asserts that because the terms and conditions of her probation were not entered into evidence at the revocation hearing, the trial court had no legal basis for finding a violation. Although appellant raises this argument for the first time on appeal, she contends her argument is a challenge to the sufficiency of the evidence. The sufficiency of the evidence of the State's proof regarding violation of a condition of probation may be challenged on appeal of a revocation in the absence of a motion for directed-verdict. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001).

This court dealt with a similar issue in Nelson v. State, 84 Ark.App. 373, 141 S.W.3d 900 (2004). In Nelson, the appellant argued for the first time on appeal that the State failed to produce proof at the...