Larry McDonald v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

LARRY McDONALD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-200

NOVEMBER 1, 2000

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR 98-662]

HONORABLE GERALD E. PEARSON, CIRCUIT JUDGE

AFFIRMED

This is a no-merit appeal of a revocation hearing. On August 10, 1998, the appellant, Larry McDonald, pled guilty to battery in the second degree and was placed on supervised probation for six years. On June 30, 1999, the State filed a petition for revocation, and a hearing was held on November 3, 1999. At the revocation hearing, the Crittenden County Circuit Court found that appellant had violated the conditions of his probation, and the court sentenced him to six months in the Arkansas Department of Correction followed by seventy-two months of supervised probation.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel filed a motion to withdraw on the ground that the appeal is without merit. This motion was accompanied by

an abstract and brief stating that the only ruling adverse to appellant was the decision of the

trial court to revoke his probation. The clerk of this court furnished appellant with a copy

of his counsel's brief and notified him of his right to file a statement of points for reversal. Appellant has not done so.

In revocation proceedings, the burden is on the State to prove by a preponderance of the evidence that the defendant has violated a condition of his probation. Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). We will not reverse the trial court's decision unless its findings are clearly against the 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. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). 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.

In order for appellant's probation to be revoked, the State need only prove that the appellant committed one violation of the conditions. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). The evidence presented at the revocation hearing revealed that the appellant had been convicted for two misdemeanor offenses, tested positive for cocaine, and missed five scheduled meetings with his probation officer. Accordingly, we find that the trial court properly revoked appellant's probation based upon these facts.

We hold that there has been substantial compliance with Anders v. California andRule 4-3(j) and that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the revocation of probation is affirmed.

Affirmed.

Jennings and Roaf, JJ., agree.