Jeff L. Rousseau v. State of Arkansas

DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CACR02-788

JUNE 25, 2003

JEFF L. ROUSSEAU AN APPEAL FROM THE GREENE

APPELLANT COUNTY CIRCUIT COURT

[CR1996-179]

v.

STATE OF ARKANSAS HONORABLE JOHN FOGLEMAN, JUDGE

APPELLEE

AFFIRMED

Appellant entered a plea of guilty to the charge of possession of methamphetamine with the intent to deliver. He was placed on fifty months' probation. On March 20, 2001, the State filed a petition to revoke, alleging that he failed to report, changed his residence without notifying his probation officer, and did not pay probation fees. Following the probation revocation hearing, the court sentenced appellant to five years in the Arkansas Department of Correction with an additional five-year suspended imposition of sentence.

Pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's present counsel has filed a motion to withdraw on the grounds that the appeal is without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, and a statement as to why counsel considers each point raised asincapable of supporting a meritorious appeal. Appellant was furnished a copy of his counsel's brief and was given the opportunity to file pro se points for reversal. Appellant did not exercise his right to raise points for reversal pursuant to Ark. Sup. Ct. R. 4-3(j)(2) (2001).

The first adverse ruling was the denial of appellant's motion for continuance. At the start of the revocation hearing, appellant's counsel requested as follows:

Counsel: I ask for a continuance because I have had very little time to prepare this case because Jeff Rousseau has failed to come into my office. This matter was set for hearing on January 7, 2002, and the next communication I had with Rousseau was last Thursday (March 28, 2002) and today is April 2, 2002. We would ask for a continuance.

Appellant: I just got information [from the] letter he wrote me and [I] contacted

him last week.

Court: Between you and [counsel] I don't think it would be in your best interest to seek out [counsel] rather than him having to seek you out?

Appellant: Last I heard he said he would contact me.

Court: The allegations . . . in this petition to revoke are that you did not report to your probation officer like you were supposed to, changed your residence without notifying your probation officer, allegedly, and that you have not paid probation fees like you were supposed to. Doesn't seem like all that complicated to prepare whether he's got a defense to that or not. Do you want to visit with him a minute?

* * *

Counsel: If you can give us just a moment.

Subsequently, appellant and his counsel left the area together and returned shortly thereafter. When reviewing the grant or denial of a motion for continuance, we employ anabuse-of-discretion standard; an appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but must also show prejudice that amounts to a denial of justice. Ware v. State, 348 Ark. 181, 75 S.W.3d 165 (2002). When a motion for continuance is based on a lack of time to prepare, we will consider the totality of the circumstances. Id.

Here, appellant's counsel informed the court that he had not spoken to his client until five days before the hearing, and therefore, needed a continuance. The trial court responded that the issue presented was not a complicated one and that counsel could have some time before the hearing to meet with his client. Appellant's counsel elected to have that time and did not renew his motion for a continuance following the meeting with appellant. Further, appellant has not identified anything that could have been done favorably for him had the continuance been granted. That is, appellant has failed to show prejudice that amounted to a denial of justice. See Ware v. State, supra. Therefore, viewing the evidence under the totality of the circumstances, the trial court did not abuse its discretion.

The second adverse ruling was a denial of appellant's motion to dismiss the petition to revoke because more than sixty days had passed since appellant was arrested and the hearing was held. Arkansas Code Annotated section 5-4-310 (Supp. 2001) provides that revocation hearings shall not be held more than sixty days after the defendant's arrest. When there has been no arrest, the requirements of holding the hearing within sixty days is not absolute. Barnes v. State, 294 Ark. 369, 742 S.W.2d 925 (1988). Here, appellant was never arrested on the petition to revoke and never placed in jail. Thus, the sixty-day rule does notapply in this instance. See Beasley v. Graves, 315 Ark. 663, 869 S.W.2d 20 (1994); Holmes v. State, 33 Ark. App. 168, 803 S.W.2d 563 (1991).

The final adverse ruling was the revocation of appellant's probation. In a revocation proceeding, the burden is on the State to prove the violation of a condition of the suspension by a preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001) (citing Ark. Code Ann. § 5-4-309 (Supp. 1999)). On appeal, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id. (citing Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992)). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. ··²hit4²····²hit4²····²hit5²····²hit5²····²hit6²····²hit6²·· Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Lamb v. State, supra (citing Lemons v. State, supra; Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986)). Circumstantial evidence may be sufficient to warrant revocation. Lamb v. State, supra (citing Needham v. State, 270 Ark. 131, 603 S.W.2d 412 (Ark. App. 1980)). In order for appellant's suspended sentence to be revoked, the State need only prove that he committed one violation of the conditions of suspension. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001).

Appellant's probation officer, Enoch Allbritton, testified that appellant had failed to report since his last visit on August 3, 2000. Further, appellant admitted that he had "used methamphetamine [the] day before yesterday by injecting it by a syringe." Thus, appellant's probation revocation is supported by the preponderance of the evidence.

Based upon our review of the record and the brief presented to this court, we conclude that there has been full compliance with Rule 4-3(j) and that the appeal is without merit. Counsel's motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Stroud, C.J. and Crabtree, J., agree.