Barbara Gipson v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION I

BARBARA GIPSON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-304

MARCH 5, 2003

APPEAL FROM THE SEBASTION COUNTY CIRCUIT COURT

[CR2000-76-G]

HONORABLE J. MICHAEL FITZHUGH, CIRCUIT JUDGE

AFFIRMED

Appellant, Barbara Gipson, appeals a decision by the Sebastian County Circuit Court revoking her suspended imposition of sentence. After a revocation hearing, she was sentenced to thirty days' imprisonment in the county detention center and suspended imposition of sentence for nine years and eleven months. Appellant has two arguments on appeal. First, she argues that the trial court abused its discretion in permitting the complaining witness to testify about a previous altercation between the parties. Second, she argues that the trial court erred in imposing an illegal sentence after the revocation hearing. We affirm.

In revocation proceedings, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his suspended imposition of sentence. See Tipton v. State, 47 Ark. App. 187, 887 S.W.2d 540 (1994). In order for appellant's suspended imposition of sentence to be revoked, the State need only prove that she committed a single violation of the conditions. See Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). We will not reverse the trial court's

decision unless its findings are clearly against the preponderance of the evidence. See Tipton v. State, supra. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for the revocation of or suspended sentence. See Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Whether the State has met its burden turns on questions of credibility and weight to be given testimony, and we defer to the trial judge's superior position to make those determinations. Id.

Appellant first argues that the trial court abused its discretion in permitting the complaining witness to testify about a previous altercation between parties. Specifically, appellant argues that this admission was a violation of Arkansas Rules of Evidence 404(b) (2002). That rule states that:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Ms. Gipson's argument for reversal fails because the rules of evidence do not apply to proceedings for granting or revoking suspended imposition of sentence. See Phillips v. State, 25 Ark. App. 102, 752 S.W.2d 301 (1988). Rule 1101(b)(3) of the Arkansas Rules of Evidence provides:

(b) Rules Inapplicable. The rules other than those with respect to privileges do not apply in the following situations:

* * *

(3) Miscellaneous proceedings. Proceedings for extradition or rendition; detention hearing in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

Since the Rules of Evidence did not apply at Ms. Gipson's suspended imposition of sentence hearing, we find no merit in her argument that the testimony of Mr. Miller was admitted in violation of Rule 404(b).

Further, even if the rules of evidence did apply, and the trial court erred in allowing Mr.Miller to testify as to the previous incidences with appellant, the error was harmless. The State was only required to show that appellant violated a single condition of her suspened imposition of sentences. See Morgan v. State, 73 Ark. App. 107, 42 S.W.3d 569 (2001) (citing Brock v. State, 70 Ark. App. 107, 14 S.W.2d 908 (2000)). Appellant admitted that she had failed to pay her fines since March. Although she attributed her failure to pay to her inability to work due to injury, she also admitted that she had gone back to work in August. It was obvious that the trial judge considered this evidence of appellant's failure to pay her fines. In his oral ruling, he stated:

The Court finds by a preponderance of the evidence that the defendant violated the terms of her release and a judgment of conviction is going to be entered against her on those charges. I don't think this offense is such that she needs to go to prison. But, she is sentenced to the Sebastian County Detention Center for her actions and conduct, and more specifically for her failure to pay these fees and fines she was directed to do. I don't buy her story about why she didn't pay. I think she wilfully failed to do that. . .

Because the court had alternative grounds for revoking appellant's suspended sentence, any error in this regard is harmless. See Farr v. State, 6 Ark. App. 14, 636 S.W.2d 884 (1982) (stating that where multiple offenses are alleged as justification for revocation of release, the trial court's finding that revocation is justified must be affirmed if the evidence is sufficient to establish that the appellant committed any one of the offenses).

Second, appellant argues that the trial court erred in imposing an illegal sentence after the revocation hearing. Specifically, appellant asserts that "the sentence was illegal, inasmuch as the original term was for five years, and the term imposed after the hearing totals ten years." We disagree. Arkansas Code Annotated section 5-4-309(f) (Supp. 2001) states that:

(1)(A) If the court revokes a suspension or probation, it may enter a judgment of conviction and may impose any sentence on the defendant that might have been imposed originally for the offense of which he was found guilty.

(B) Provided, that any sentence to pay a fine or to imprisonment, when combined with any previous fine or imprisonment imposed for the same offense, shall not exceed the limits of§ 5-4-201 or § 5-4-401, or, if applicable, § 5-4-501.

(2)(A) For purposes of this subsection, the term "any sentence" includes the extension of a period of suspension or probation.

(B) If, upon revocation, an extension of suspension or probation is made, the court is not deprived of the ability to revoke such suspension or probation again should the defendant's conduct so warrant.

In the present case, appellant was originally sentenced to five years suspended imposition of sentence, without any set term of imprisonment. A sentence is not imposed until the court pronounces a fixed term of imprisonment. See McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980). Because appellant was only given five-years' suspended imposition of sentence, she was released by the court without pronouncement of sentence and without supervision. See Ark. Code Ann. § 5-4-101(1) (Supp. 2001). After a determination that appellant had violated the conditions of her suspended imposition of sentence, she was given thirty-days' imprisonment with nine years and eleven months suspended imposition of sentence. Neither the fine nor the term of imprisonment imposed on revocation may exceed the amounts that were originally imposed. No term of imprisonment was originally imposed in this case; thus, the sentence was not illegal. Furthermore, the term of thirty days imprisonment and nine years and eleven months suspended imposition of sentence does not exceed the maximum penalty for Class C felonies. See Ark. Code Ann. § 5-4-401(4) (Repl. 1997) (stating that the sentence for a Class C felony shall not be less than three years nor more than ten years). Accordingly, we affirm.

Crabtree and Roaf, JJ., agree.