South Jordan City v. Robinson

----ooOoo----

South Jordan City,
Plaintiff and Appellee,

v.

Kaylin Robinson,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990474-CA

F I L E D
September 10, 1999
  1999 UT App 259 -----

Third District, West Valley Department
The Honorable Paul G. Maughan

Attorneys:
Kaylin Robinson, Riverton, Appellant Pro Se
Keith L. Stoney, West Valley City, for Appellee

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Before Judges Wilkins, Billings, and Jackson.

PER CURIAM:

Appellant Kaylin Robinson appeals from an order requiring her to serve ten days in jail for failing to satisfy certain conditions of her probation.

It was undisputed that Robinson complied with all conditions of probation, except requirements to obtain a driver's license and proof of insurance. Robinson stated at the hearing and in three motions to extend the time for compliance that she was unable to obtain a driver's license because her driving record listed her as having a suspended license. She stated she was unable to clear her record, did not presently own a car, had not driven a car since her conviction, and had made alternative arrangements for her transportation. The district ordered Robinson to serve ten days of the suspended sixty day jail sentence, stating this would "clear this case and you're not going to have to keep coming back because you failed to get your license."

In order to prevail on an appeal from an order revoking probation, an appellant "must show that the evidence of a probation violation, viewed in a light most favorable to the trial court's findings, is so deficient that the trial court abused its discretion in revoking defendant's probation."

State v. Peterson, 869 P.2d 989, 991 (Utah Ct. App. 1994)(citations omitted). "Moreover, a trial court's finding of probation violation is a factual one and therefore must be given deference on appeal unless the finding is clearly erroneous." Id. "[I]n order for a trial court to revoke probation based on a probation violation, the court must determine by a preponderance of the evidence that the violation was willful." Id. "[A] finding of willfulness 'merely requires a finding that the probationer did not make bona fide efforts to meet the conditions of his probation.'" Id.

The trial court made no written or oral findings assessing Robinson's factual representations, which bear upon the willfulness of the probation violation. A trial court's failure "to make findings on all material issues is reversible error unless the facts in the record are 'clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.'" Acton v. Deliran, 737 P.2d 996, 999 (Utah 1987)(citation omitted). Although it is undisputed that Robinson did not obtain a driver's license, it is not clear and uncontroverted that the failure was willful, i.e., that she failed to make a bona fide effort to comply. The district court is required to determine by a preponderance of the evidence that the probation violation was willful. In the absence of factual findings demonstrating the trial court's resolution of this and other material factual issues, an appellate court cannot engage in any meaningful appellate review. Accordingly, it is necessary to remand this case for the entry of sufficient findings of fact in support of the court's ruling.

We withdraw the sua sponte motion for summary affirmance and reverse and remand the case for entry of findings of fact and an order consistent with this decision.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge
 
 
 

______________________________
Norman H. Jackson, Judge