Jerry L. Jones v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION III

JERRY L. JONES

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-635

JUNE 11, 2003

APPEAL FROM HEMPSTEAD COUNTY CIRCUIT COURT

[NO. CR2000-165-1]

HONORABLE JIM GUNTER, CIRCUIT JUDGE

AFFIRMED

The Hempstead County Circuit Court revoked appellant Jerry Jones's probation for violations of the Arkansas Hot Check Law and sentenced him to six years' imprisonment based upon his failure to comply with the terms of his probation. On appeal, Jones argues that the trial court erred in revoking his probation because the revocation hearing was not held within sixty days of his arrest pursuant to Ark. Code Ann. § 5-4-310(b)(2) (Repl. 1997). We affirm.

On August 17, 2000, Jones pleaded guilty to violations of the Arkansas Hot Check Law and was placed on probation for a period of three years. Jones was also ordered to pay court costs and restitution in the amount of $2,018.19. On August 18, 2000, Jones was taken into custody on a warrant for a parole revocation on an unrelated matter. He remained in custody on the violation until May 1, 2001. Jones was again taken into custody for violating his parole on July 3, 2001, and he remained in custody until January 24, 2002.

On March 7, 2002, the State filed a petition for revocation, alleging that Jones had violatedthe conditions of his probation on eight separate grounds, including failing to report, failing to maintain employment, failing to pay costs and restitution, and failing to pay supervision fees. Jones was arrested for violating the terms of his probation on March 20, 2002. At a hearing on April 3, 2002, the prosecutor advised the trial court that "[t]he defense is going to ask that it be continued and he be released on his own recognizance." Jones's trial counsel then requested a continuance to allow Jones to find employment, start reporting to his probation officer, and start making his restitution payments. Jones's counsel stated that he would waive the requirement that the revocation hearing be held within sixty days if the trial court would release Jones and set another date for a hearing. The court then asked Jones's counsel, "This is continued on your motion to what?" Jones's counsel replied that it would be continued until May 22. The trial court declined to release Jones on his own recognizance and set the bond at $2,000, cash or unencumbered property. When Jones stated that he could not make the bond, the trial court responded that it would have to hear more evidence from Jones in order to reconsider the amount of the bond. The prosecutor then stated that they might discuss it further with the court once Jones's probation officer was back.

Jones remained in custody until the revocation hearing was held on May 22, 2002, sixty-three days after he was arrested. At the conclusion of the hearing, Jones's counsel informed the court that Jones had filed a pro se motion to dismiss the revocation petition based upon not having his hearing within sixty days of his arrest. However, counsel stated that he had told Jones that he could not represent him on that motion because he recalled what was discussed at the hearing in April and that the reason the hearing was continued was inconsistent with Jones's motion. The trial court dismissed Jones's motion, noting that the docket sheet reflected that the time was waived because the case was continued on the defense's motion until May 22, 2002. The court then found that Jones had violated numerous terms of his probation and sentenced him to six years'imprisonment.

On appeal, Jones argues that the trial court erred in revoking his probation after the expiration of the sixty-day limitation set out in Ark. Code Ann. § 5-4-310(b)(2). Section 5-4-310(b)(2) states that revocation hearings shall be conducted by the court that placed the defendant on probation within a reasonable period of time, not to exceed sixty days, after the defendant's arrest. The statutory period of time begins to run from the date of the defendant's arrest for the alleged violation of the terms of his probation. Lark v. State, 276 Ark. 441, 637 S.W.2d 529 (1982); Holmes v. State, 33 Ark. App. 168, 803 S.W.2d 563 (1991). The purpose of section 5-4-310(b)(2) is to assure that the defendant is not detained in jail for an unreasonable amount of time awaiting his revocation hearing. Holmes, supra.

Because his revocation hearing was held sixty-three days after he was arrested for violating his probation, Jones argues that the trial court erred in not dismissing the petition. The State asserts that Jones waived the sixty-day requirement at the April 3 hearing by asking that the court continue the revocation hearing until May 22. Jones contends, however, that he only agreed to waive the sixty-day requirement if the trial court agreed to release Jones on his own recognizance, which the court declined to do.

As the State argues, this court has previously stated that the provisions of Ark. R. Crim. P. 28.3 (2003), pertaining to speedy trials, are applicable in computing excludable periods of time from the sixty-day limitation required for revocation hearings. Rodgers v. State, 49 Ark. App. 136, 898 S.W.2d 475 (1995). According to Rule 28.3(c), the period of time resulting from a continuance granted at the request of the defendant or his counsel shall be excluded.

A review of the transcript of the April 3 and May 22 hearings, as well as the docket sheet, reveals that Jones's counsel requested the continuance until May 22. Although Jones argues thathe agreed to waive the sixty-day limitation only if the court would release him on his own recognizance, the transcript reflects that Jones's counsel only stated, "We'll waive the time between now and the day if the Court would release him and give him a day to be back." After a discussion between the trial court and Jones, the court then asked Jones's counsel, "This is continued on your motion to what?" Jones's counsel replied that it would be continued to May 22. When the trial court refused to allow Jones to be released on his own recognizance and set a bond amount, Jones did not state that he no longer requested the continuance, nor did he further mention the waiver. At the hearing on May 22, Jones's counsel informed the court that it could not represent him on his motion to dismiss the petition because he recalled the reason for the continuance and that it would be inconsistent with Jones's motion. In addition, as the trial court noted in denying Jones's motion, the docket sheet reflects that the time from April 3, 2002, until May 22, 2002, was waived because the case was continued "on the defense motion." Given this evidence that the continuance was requested by the defense, the trial court did not err in denying Jones's motion to dismiss and in holding the revocation hearing on May 22, 2002.

Affirmed.

Hart and Bird, JJ., agree.