Charles Earnest Smith v. State of Arkansas

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ar03-799

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CHARLES EARNEST SMITH,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-799

APRIL 7, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

SEVENTH DIVISION,

NO. CR1998-399,

HON. BARRY SIMS, JUDGE

REVERSED AND DISMISSED

Sam Bird, Judge

Charles Earnest Smith appeals the revocation of his probation in the Pulaski County Circuit Court. He contends that the trial court erred in granting the State's petition to revoke his probation because there was insufficient evidence to prove that he had violated a condition of the probation. We agree with this contention; therefore, the revocation is reversed and dismissed.

On March 3, 1998, the trial court sentenced Smith to five years' probation, a $250 fine and court costs, and $100 restitution pursuant to his negotiated guilty pleas on three counts of second-degree forgery. On January 30, 2003, the State filed a petition for revocation, alleging that Smith had violated the conditions of probation in that he had failed to pay $1275 in supervision fees and had been charged with domestic battery. On April 7, 2003, the circuit court conducted a hearing on the petition to revoke.

The State's only witness at the revocation hearing was Troy Jordan, Smith's probation officer. Jordan testified in pertinent part:

This is a second revocation hearing.

When Mr. Smith was returned to the terms of his probation previously, I was not present. I was not subpoenaed for that court date.

He was not re-read the rules of probation, not after the first probation. He was returned to the previous rules.

I have not seen him since that point. I take that back. Yes, I have seen him. [The] dates I saw him [were] November 26, 2002, and December 3, 2002. The last time I saw him was December 3, 2002. I have not heard from anything [sic] since that point, not other than his upcoming trial dates, no. All I heard from him after this point was nothing. Nothing at all.

When he came in in November and December of 2002, he was aware of the terms of his probation, how often he had to check in and all of that. They had been read to him previously. He had indicated that he understood each and every one of those terms.

Smith contends on appeal, as he did below, that the State did not produce evidence of the terms of probation, and thus did not prove that a condition of his probation was that he report to his probation officer on a scheduled basis. If the court places a defendant on probation, it may require as a condition of its order that the defendant report as directed to the court or the probation officer. Ark. Code Ann. § 5-4-303(d)(1)(Repl. 1997)(now codified at § 5-4-303(e)(1)(Supp. 2003)). Although the trial court may require a defendant, as a condition of probation, to report to a probation officer, the statute does not mandate that such a condition be given.

If the court places a defendant on probation, it may require as a condition of its order that the defendant report as directed to the court or the probation officer. Ark. Code Ann. § 5-4-303(d)(1) (Repl. 1997) (now codified at § 5-4-303(e)(1) (Supp. 2003)). A revocation of probation requires a finding that the defendant has inexcusably failed to comply with a condition of his suspension or probation. See Ark. Code Ann. § 5-4-309(d) (Repl. 1997). To revoke probation, the burden is on the State to prove by a preponderance of the evidence the violation of a condition of probation. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147(1998). In a revocation hearing, the trial court may permit the introduction of any relevant evidence of the alleged violation regardless of its admissibility under the rules governing the admission of evidence. See Ark. Code Ann. § 5-4-310(c)(2).

Smith argues on appeal that the State did not produce evidence that a condition of his probation was to report to his probation officer after December 3, 2002. We agree. Probation Officer Jordan's testimony was simply that he had not seen Smith since December 3, 2002; that Smith was aware of the terms of his probation and "how often he had to check in"; that the conditions had been read to Smith previously; and that Smith had indicated his understanding of "each and every one of those terms." The State introduced no further testimony or documentation to show that any condition of Smith's probation included reporting to his probation officer after December 3, 2002. Because the State failed to prove the existence of this condition, the State could not prove that Smith violated it.

We hold that there was insufficient evidence to prove that Smith violated any condition of his probation.

Reversed and dismissed.

Pittman and Robbins, JJ., agree.