Dawond Pinckney v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE DIVISION IV

DAWOND PINCKNEY,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-440

NOVEMBER 29, 2000

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT,

NO. CR97-354,

HON. JOHN HOMER WRIGHT,

JUDGE

AFFIRMED

Dawond Pinckney entered a plea of guilty in Garland County Circuit Court to the offense of possession of a controlled substance, crack cocaine, on July 20, 1998. He was sentenced to a judgment of probation, without pronouncement of sentence, for a term of five years, on the usual conditions, including that he obey all federal and state laws, local ordinances, and court orders, and that he not own, possess or use any deadly weapon or associate with anyone who does.

On April 22, 1999, a violation report was filed in which it was alleged that Pinckney was involved in a shooting incident and had been in the company of a person with a weapon. Pinckney was arrested on May 25, 1999, and released on $10,000 bail. On June 3, 1999, an amended violation report was filed alleging that Pinckney had violated the condition of his probation that he obey all laws, because he had been arrested and charged with armed bank

robbery in Union County.

A revocation hearing was scheduled for June 14, 1999, but Pinckney failed to appear. The bailiff informed the judge that Pinckney was being held in the Union County jail for bank robbery. On July 26, 1999, the Circuit Court of Garland County issued a writ of habeas corpus ad prosequencum to the U.S. Marshall of the Western District of Arkansas and to the sheriff of Union County to release Pinckney to the Garland County sheriff for a hearing on August 9, 1999. At that hearing the court set the revocation hearing for September 13, 1999.

On August 24, 1999, Pinckney filed a motion to dismiss, contending that he was entitled to a hearing within sixty days of his arrest for violating his probation, that more than sixty days had passed, and, therefore, he was entitled to be released. Pinckney argued that he had been in state custody for most of the time between his arrest on the original petition to revoke, that no revocation hearing had been requested during that time, and that the petition should be dismissed. On September 13, 1999, Pinckney's motion was considered and denied, and, after a hearing, his probation was revoked. Pinckney argues on appeal that the court erred in failing to grant his motion to dismiss because a hearing was not conducted within sixty days of his arrest for violation of his probation. We find no error and affirm.

Pinckney argues that because the Garland County prosecutor and the Garland County judge knew that he was incarcerated in Union County but did nothing to bring him to court in Garland County within sixty days, the statute was violated and the petition to revoke his probation should have been dismissed. In support of his contention, Pinckney relies uponArk. Code Ann. § 5-4-310(b)(2) (Repl. 1997), which provides, "The revocation hearing shall be conducted by the court that suspended imposition of sentence on the defendant or placed him on probation within a reasonable period of time, not to exceed sixty (60) days, after the defendant's arrest." The statutory period is mandatory, Lincoln v. State, 262 Ark. 511, 558 S.W.2d 146 (1977), and begins to run on the day following arrest. Petty v. State, 31 Ark. App. 119, 898 S.W.2d 788 (1990).

Pinckney also suggests that "the sixty days is not waived if he is held on other charges, unless those 'other charges' were placed upon him prior to the time he was served with the arrest warrant on the Petition to Show Cause why his probation should not be revoked," and as authority for this argument he cites Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995). Pinckney's reliance on Bilderback is misplaced. That case only holds that the sixty-day rule did not apply to Bilderback because she spent no time in jail as a result of the motion to revoke probation. She was already incarcerated on a later charge when she was served with the arrest warrant issued pursuant to the revocation motion.

The Arkansas Supreme Court has held that when a defendant is in jail on another charge, the sixty-day limitation is not applicable. The purpose of the limitation period is to assure that a defendant is not detained in jail for an unreasonable time awaiting his revocation hearing. The limitation loses its meaning when he is already serving time on another charge. Bilderback v. State, supra ; Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980).

In Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994), the Arkansas SupremeCourt said:

The sixty-day limitation of section 5-4-310(b) is not applicable to petitioner's case because there is nothing in the record that indicates he was arrested for violating the terms of his probation. We have stated on numerous occasions that the purpose of the sixty-day requirement is to assure that a defendant who has been arrested for violation of probation is not held in jail for an unreasonable time awaiting his revocation hearing. See e.g., Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980). When there has been no such arrest, the sixty-day limitation is not absolute, Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988); and even if a defendant was already incarcerated on another charge, he suffers no prejudice if more than sixty days lapses before his revocation hearing. Lark v. State, 276 Ark. 441, 637 S.W.2d 529; Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986).

315 Ark. at 664-65, 869 S.W.2d at 21.

In Vann v. State, 16 Ark. App. 199, 698 S.W.2d 814 (1985), we said:

A clearly established distinction has been made between arrest for violation of the conditions of a suspended sentence and arrest for other charges in determining whether a revocation hearing under Ark. Stat. Ann. 41-1209(2) (Repl. 1977) [now Ark. Code Ann. § 5-4-310(b)(2) (Repl. 1997)] has been held within 60 days of arrest. In Walker v. State, 262 Ark. 215, 555 S.W.2d 228 (1977), the Arkansas Supreme Court held, in regard to the defendant's contention that he was not given a revocation hearing within 60 days of his arrest, that his arrest was for theft of property and not for revocation and, therefore, the 60-day limitation for the revocation hearing as provided in section 41-1209(2), supra, did not apply.

In Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984), the court again made the same distinction. In that case the court said in regard to the 60-day limitation: "That provision relates to an arrest for violation of the conditions of a suspended sentence and not an arrest on another charge."

16 Ark. App. at 201-02, 698 S.W.2d at 816.

Nowhere in the statutes or case law do we find any distinction made because the incarceration for a different charge occurred before or after the arrest on the probationviolation.

Affirmed.

Jennings and Stroud, JJ., agree.