Zollicoffer v. State

Johnny L. ZOLLICOFFER v. STATE of Arkansas

CA CR 96-218                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered December 4, 1996


Criminal procedure -- suspended imposition of sentence -- all 
     conditions must be in writing -- revocation of suspension
     reversed and dismissed. -- Under Ark. Code Ann.  5-4-303
     (Repl. 1993), if the trial court suspends the imposition of
     sentence on a defendant or places him on probation, the
     defendant must be given a written statement explicitly setting
     forth the conditions under which he is being released; all
     conditions for a suspended sentence, including any requirement
     of good behavior, must be in writing if the suspended sentence
     is to be revocable; therefore, courts have no power to imply
     and subsequently revoke for violation of conditions that were
     not expressly communicated in writing to a defendant as a
     condition of his suspended sentence; the appellate court
     reversed and dismissed the trial court's revocation of
     appellant's suspension.


     Appeal from Johnson Circuit Court; John S. Patterson, Judge;
reversed and dismissed.
     William M. Pearson, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     John Mauzy Pittman, Judge.
     On July 2, 1993, the appellant, Johnny L. Zollicoffer, pleaded
guilty to the offense of criminal attempt to obtain a controlled
substance by fraud.  He was sentenced to six years in the Arkansas
Department of Correction, with the last three years of the term
suspended.  On April 3, 1995, the prosecuting attorney filed a
petition to revoke the suspended portion of appellant's sentence,
alleging that he had violated its conditions by committing another
criminal offense.  After a hearing, the trial court revoked
appellant's suspension, ordered that he serve ninety days in the
Arkansas Department of Community Punishment, and suspended
imposition of an additional term.  On appeal, appellant contends
that the trial court erred in revoking his suspension because he
never received any written conditions and erred in admitting into
evidence medical records and statements that appellant made to
physicians and pharmacists.  Because we find merit in appellant's
first argument, we reverse the order of revocation and dismiss the
case.  Consequently, we need not address appellant's second point.
     At the hearing on the State's petition, appellant moved to
dismiss the revocation proceeding, arguing that there was no proof
that appellant was ever given any written conditions of his
suspended sentence.  Therefore, he argued, the trial court was
without authority to revoke his suspension.  The trial court
acknowledged that there was no evidence and nothing in the file to
indicate that appellant received any written conditions.  The State
did not respond to the motion, seek to re-open its case, or proffer
any evidence to show that appellant was so informed in writing. 
Nevertheless, the trial court denied the motion to dismiss.
     We agree with appellant that the trial court erred.  Arkansas
Code Annotated  5-4-303 (Repl. 1993) provides 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 Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980),
the supreme court was faced with a similar set of facts.  There,
the court held as follows:
     [A]ll conditions for a suspended sentence, including any
     requirement of good behavior, must be in writing if the
     suspended sentence is to be revokable.  Therefore, courts
     have no power to imply and subsequently revoke [for
     violation of] conditions which were not expressly
     communicated in writing to a defendant as a condition of
     his suspended sentence.

268 Ark. at 191, 594 S.W.2d  at 853; see Neely v. State, 7 Ark. App.
238, 647 S.W.2d 473 (1983).
     Reversed and dismissed.
     Griffen and Robbins, JJ., agree.