Calvin L. Tucker v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, JUDGE

DIVISION IV

CACR00-198

OCTOBER 25, 2000

CALVIN L. TUCKER AN APPEAL FROM THE

APPELLANT CRITTENDEN COUNTY CIRCUIT COURT [CR95-872]

v.

STATE OF ARKANSAS HON. GERALD E. PEARSON,

APPELLEE CIRCUIT JUDGE

REVERSED and DISMISSED

On July 15, 1996, appellant, Calvin L. Tucker, entered a negotiated plea of guilty to the offense of possession of a controlled substance with intent to sell or deliver. He received a sentence of sixty months in the Arkansas Department of Correction followed by a twenty-year suspended imposition of sentence. Appellant was given a total time of sixty months to serve in jail, with a jail-time credit of 193 days.

On September 16, 1999, the prosecuting attorney filed a petition to revoke the suspended portion of appellant's sentence, alleging that appellant violated the conditions of his suspended sentence by committing the offenses of loitering, possession of an instrumentof a crime, and obstructing governmental operations. After a hearing, the trial court granted the State's petition to revoke and imposed a sentence of ten years in the Arkansas Department of Correction with a twenty-year suspended imposition of sentence to run consecutively to the ten-year sentence. On appeal, appellant contends that the trial court erred in hearing the State's petition for revocation when he was not advised in writing of the conditions regarding his suspended imposition of sentence. We find merit in appellant's argument, and reverse the trial court's revocation of appellant's suspended sentence.

At the revocation hearing, appellant moved to dismiss the State's petition for revocation based on Ark. Code Ann. § 5-4-303(g) (Supp. 1999), which states that "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 denying the motion, the trial court stated that the judge who presided over appellant's original plea and sentencing hearing "made it plain and clear that he -- has [sic] he did in every case -- that you fool around with drugs, you can get revoked and sent back."

To revoke probation, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Ramey v. State, 62 Ark. App. 204, 972 S.W.2d 952 (1998). On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Further, the appellate court defers to the trial court's superior position on determinations of credibility. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998).

As a rule, criminal statutes are strictly construed with any doubts resolved in favor of the accused. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Arkansas Code Annotated section 5-4-303(e) (Repl. 1997) [now Ark. Code Ann. § 5-4-303 (g) (Supp. 1999)] clearly states that the defendant must be given a written statement explicitly setting forth the conditions under which he is being released. Id. All conditions for a suspended sentence, including any requirement of good behavior, must be in writing if the suspended sentence is to be revocable. Zollicoffer v. State, 55 Ark. App. 166, 934 S.W.2d 939 (1996). Therefore, courts have no power to imply and subsequently revoke conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence. Neely v. State, 7 Ark. App. 238, 647 S.W.2d 473 (1983).

The State contends that appellant has not brought up an adequate record on appeal by only including the revocation proceeding of November 3, 1999. It further contends that the only proof showing that appellant did not receive the terms of his suspended sentence in writing was from appellant's self-serving testimony, and the fact that the conditions of suspension form did not bear appellant's signature.

In this case, however, the record shows that appellant was not given written notice of the conditions of his suspended sentence. Although the record contains a document entitled "Conditions of Probation or Suspended Imposition of Sentence," there was no evidence showing that these conditions were expressly communicated in writing to the appellant. The trial court even acknowledged at the revocation hearing that appellant only received verbal notice of the conditions of his suspended sentence at the time of his originalplea and sentence. Notwithstanding the fact that the conditions of suspension form did not bear appellant's signature, the State did not proffer any evidence to show that appellant was informed of any conditions of suspension in writing.

Because the State has not met its burden of proof that appellant was advised of his conditions in writing, we reverse the decision of the trial court.

Reversed and dismissed.

Robbins, C.J., and Bird, J., agree.