Larry Linder v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

LARRY LINDER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-406

December 12, 2001

APPEAL FROM THE GARLAND

COUNTY CIRCUIT COURT,

[CR 99-385-I]

HONORABLE JOHN HOMER

WRIGHT, CIRCUIT JUDGE

AFFIRMED

On March 27, 2000, pursuant to a plea agreement, Larry Linder pleaded guilty to one count of forgery in the second degree and was sentenced to five years' probation. Linder's probation officer filed a violation report on October 17, 2000, alleging that Linder had violated seven conditions of his probation; on October 19, the State filed a petition to show cause, asking that Linder's probation be revoked. A hearing on this petition was held on December 18, 2000. After the hearing, the trial judge determined that Linder had violated the terms of his probation, revoked his probation, and sentenced him to four years' incarceration in the Arkansas Department of Correction. Linder now appeals, arguing that the trial court erred in finding that he willfully violated the terms of his probation and that the trial court failed to make specific findings of fact with regard to willful violation of the terms of his probation. We find no error; therefore, we affirm.

In his first point on appeal, Linder argues that the trial court's finding that he had willfully violated the terms and conditions of his probation is clearly against the preponderance of the evidence. At the hearing, the trial court found that appellant had violated condition 2 by failing to report to his probation officer in July, September, and October; condition 3 by failing to pay his supervision fees without valid justification; condition 5 by moving from his approved residence without his probation officer's knowledge or approval; conditions 14A and 14B by failing to pay restitution as ordered; and condition 15 by failing to pay court costs as ordered.

A trial court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 5-4-309(d) (Supp. 2001). In probation revocation proceedings, the State has the burden of proving that appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and this court will not reverse the trial court's decision to revoke probation unless it is clearly against the preponderance of the evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826 (1998). The State need only show that the appellant committed one violation in order to sustain a revocation. See Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). In testing the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988).

At the hearing, Paula Ford, Linder's probation officer, testified that he did not report from July to October of 2000; however, he was incarcerated in August, so that failure to report was not counted against him. She stated that Linder did not give her any explanationas to why he failed to report for the other three months. Ford also testified that Linder did not return to the address listed as his residence in her record, which was his parents' house, after he was released from jail; was in arrears on his probation and supervision fees; had only paid forty dollars in restitution; and had not paid his court costs within thirty days as ordered. Linder admitted that he did not report to Ford in July, September, and October, although he said that he did try to report in July but she was not there. He also testified that his mother passed away in July, and that his father had been ill. However, he acknowledged that he did not notify Ford of his difficulties. He also admitted that he did not return to his parents' house after he was released from jail and did not have a chance to tell Ford that he had moved; he said he was not thinking at the time. Linder also stated that he had not paid his various fees, costs, and restitution because he had other financial obligations.

Linder contends that this case is similar to Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990). In that case, this court reversed the revocation of the appellant's probation, which was revoked on the basis of failure to pay fines and to appear in person to his probation officer. Appellant was a seventeen-year-old boy who resided in Longview, Texas, with his mother and three siblings. His mother was ill with cancer and was unable to work. He testified that he was financially unable to come to Arkansas to meet with his probation officer, and he was in arrears on his payments because other than government assistance, he was the sole provider for his family, and everything he made went toward the family's bills.

The present case is clearly distinguishable from Baldridge. Linder is a thirty-eight-year-old man who still lives in the same county in which he was placed on probation. However, he still failed to report to his probation officer, and he did not apprise her of his change of address, both of which he admitted at the hearing. Based upon this evidence, we cannot say that the trial judge's decision to revoke his probation was clearly against the preponderance of the evidence.

Linder's second point on appeal concerns the failure of the trial court to make specific findings regarding the willfulness of appellant's failure to pay his fees, costs, and restitution. This argument is not preserved for appellate review because it was not raised below. Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989). Nevertheless, appellant admitted that he had also failed to report to his probation officer for three months and had not told her of his change of address, which were both violations of the conditions of his probation. Either of these violations is sufficient to sustain the revocation of appellant's probation, as the State need only prove the violation of one condition for revocation. See Brock v. State, supra. Both of these violations were enumerated in the trial judge's findings of fact, which satisfies the requirements of Ark. Code Ann. § 5-4-310(b)(5) (Repl. 1997).

Affirmed.

Hart and Neal, JJ., agree.