Rodney Scott Porta v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION III

RODNEY SCOTT PORTA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-428

NOVEMBER 14, 2001

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR1993-24, 25, 26, 47 and 49]

HONORABLE FLOYD G. ROGERS CIRCUIT JUDGE

AFFIRMED

On March 10, 1993, appellant, Rodney Scott Porta, pled guilty to three counts of burglary, a Class B felony, two counts of theft of property, a Class B felony, and one count of theft of property, a Class C felony. He was sentenced to twenty years for the three counts of burglary and the two counts of Class B theft of property and ten years for the Class C theft of property, with all but five years suspended on each count. The sentences were to run concurrently, making him eligible for parole immediately. He was also ordered to pay restitution of $11,467.07 jointly and severally with co-defendants, as well as $5,840.40 personally in payments of $100 per month beginning sixty days following his release. Appellant presents two points on appeal. First, appellant argues that the trial court erred in revoking his probation because the failure to pay restitution was not willful. Second, appellant argues that the trial court erred in revoking his probation because the hearing was held over sixty days after service of the warrant. We affirm.

Appellant was released from the Arkansas Department of Correction in September 1993,with

a suspended sentence of fifteen years. Appellant was arrested on August 8, 2000, in Arkansas and held in the Crawford County jail until the revocation proceeding. The hearing was held on Monday, October 9, 2000. A restitution ledger, introduced without objection at the hearing, indicated that since appellant's release in 1993, appellant had made restitution in the amount of only $299. Appellant testified that he was incarcerated twice following his release in 1993. He was incarcerated for nine months in Nebraska, and he was also incarcerated for two and a half years in Arizona. These two periods of incarceration were not continuous.

At the hearing, appellant's counsel raised the defense of a speedy-hearing violation, claiming that appellant's violation of the terms and conditions of his suspended sentence was not willful and that the hearing was more than sixty days following appellant's arrest. However, appellant's counsel conceded that Monday, October 9, 2000, was the sixty-first day following the arrest. The trial court found that appellant was in violation of the terms and conditions of his suspended sentence and sentenced him to seven years' imprisonment.

In a revocation hearing, the burden is upon the State to prove a violation of a condition of the suspended sentence by a preponderance of the evidence; on appellate review, the trial court's findings are upheld unless they are clearly against a preponderance of the evidence. Morgan v. State, 72 Ark. App. 482, 37 S.W.3d 684 (2001) (citing Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992)). Since a determination of the preponderance of the evidence turns on questions of credibility and weight to be given testimony, this court defers to the trial court's superior position. Id.

Appellant's first argument is that the trial court erred in revoking appellant's probation because the failure to pay restitution was not willful. Appellant cites Arkansas Code Annotated section 5-4-205 (Supp. 2001) in support of his argument. Section (c)(2) states that "[i]n determiningwhether to revoke probation or conditional release, the court or releasing authority shall consider the defendant's employment status, earning ability, financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay." However, appellant did not provide any reasonable excuse for his failure to pay the restitution other than his testimony that he had been incarcerated on two separate, unrelated occasions in two different states. Appellant also argues that the trial court originally ruled that restitution was an adequate and appropriate penalty for the crime and, therefore, he should not now be imprisoned because he is financially unable to make restitution payments. We acknowledge the U.S. Supreme Court's holding on this issue in Bearden v. Georgia, 461 U.S. 660 (1983), and our own court's holding in Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984), both of which seek to avoid invidious discrimination against indigent defendants. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). However, once evidence of failure to pay restitution is introduced, appellant bears the burden of going forward with some reasonable excuse for his failure to pay. Id. As previously stated, appellant has not provided any reasonable excuse for his failure to pay restitution other than his testimony regarding two separate incarcerations in other states. Therefore, we hold that the trial court did not err in finding nonpayment of restitution supported the revocation and was not clearly against the preponderance of the evidence.

Appellant's second argument, that the trial court erred in revoking appellant's probation because the hearing was held over sixty days after service of the warrant, was not preserved for our review. Our supreme court has held that if a probationer fails to raise his motion to dismiss the revocation petition for lack of a speedy hearing before the hearing, he has waived his rights. Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987); Cook v. State, 59 Ark. App. 24, 952 S.W.2d 677 (1997). Here, appellant's counsel first argued that the sixty-day limitation was violatedfollowing appellant's testimony at the hearing on October 9, 2000. Prior to the October 9, 2000, hearing, appellant had ample opportunity to raise this argument and put the State on notice that this argument was being asserted. Because appellant failed to raise this argument prior to the hearing, the argument was waived.

We note that, even if a timely objection had been made regarding the sixty-day limitation rule, such objection would have been unavailing. Arkansas Code Annotated section 5-4-310(b)(2) (Repl. 1997) provides that a "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 purpose of the sixty-day requirement in subsection (b) of this section is to assure that a defendant who has been arrested for violation of a probation is not held in jail for an unreasonable time awaiting his revocation hearing. See Bilderback v. State, 319 Ark. 643, 893 S.W.2d 780 (1995); see also Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994). However, Arkansas Rule of Criminal Procedure 1.4 (2001), which applies to statutes governing criminal proceedings, provides that "[w]hen the first or last day of a time period is a Saturday, Sunday, or state or federal legal holiday, it shall not be computed as part of the time period, which shall run until the end of the next day which is neither a Saturday or a Sunday, nor a legal holiday." On August 8, 2000, appellant was arrested for failure to appear at his revocation hearing. On Monday, October 9, 2000, the hearing on the revocation petition was held. Appellant conceded that Monday, October 9, 2000 was the sixty-first day following appellant's arrest. Indeed, the sixtieth day after appellant's arrest was October 8, 2000, which fell on a Sunday. The hearing was held the following Monday. Thus, no violation of the sixty-day rule occurred.

Affirmed.

Hart and Vaught, JJ., agree.