Richard Edward Merritt v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RICHARD EDWARD MERRITT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-798

February 22, 2006

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NOS. CR-99-78, CR-00-242, CR-00-353]

HON. CHARLES D. BURNETT,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this criminal case was convicted of felony theft in 1999 and of felony theft and burglary in 2000. He was sentenced to ten years' suspended imposition of sentence on each charge, suspension being conditioned on written conditions including good behavior and payment of fines and costs. The State filed a petition to revoke in February 2005, alleging that appellant violated the conditions of his suspension by (1) failing to pay fines, costs, and fees as directed; (2) committing the offense of rape; (3) committing the offense of burglary; (4) failing to notify the sheriff of his current address and employment; and (5) failing to work regularly at suitable employment. After a hearing, the trial court found that appellant had violated the conditions of his suspension and sentenced him to terms of imprisonment of thirty years and ten years, to be served consecutively. On appeal, appellant argues that the trial court lacked jurisdiction to revoke his suspension for the 1999 theft; that the evidence is insufficient to support the trial court's finding that appellant

violated the conditions of his suspension; and that he received ineffective assistance from his attorney at the revocation hearing. We affirm.

Appellant argues that the trial court lacked jurisdiction to revoke the suspension of his 1999 theft conviction because a previous "order of nolle prosequi" acted as a dismissal of that charge. We do not agree. Appellant's argument is based on an erroneous reading of the order of nolle prosequi, which simply dismissed a prior petition to revoke in that case, and is clearly without merit. The trial court's jurisdiction was proper.

Appellant further argues that the evidence is insufficient to support the trial court's finding that appellant violated the conditions of his suspension. However, appellant's sufficiency argument is directed only at the evidence relating to the rape and burglary.1 The State bears the burden of proving by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension, but need only prove that the defendant committed one violation of the conditions. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). We do not reverse a trial court's findings on appeal unless they are clearly against the preponderance of the evidence. Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003). We need not decide whether there was sufficient evidence to support the finding that appellant committed rape and burglary. Even should we assume, arguendo,that the evidence of rape and burglary was insufficient to support a finding that appellant violated the conditions of his suspension by committing these offenses, there was substantial evidence offered at the hearing to show that appellant, over the course of several years, made no attempt to satisfy his court-imposed financial obligation. On this record, we cannot say that the trial court's finding that appellant violated the conditions of his probation was clearly wrong.

Finally, appellant asserts that he received ineffective assistance of counsel at the revocation hearing, but this issue is being raised for the first time on direct appeal and is therefore not properly before us for review. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).

Affirmed.

Glover and Roaf, JJ., agree.

1 At the conclusion of the hearing, the trial judge remarked that "the evidence is more than sufficient that [appellant] broke into [the victim's] home and committed a burglary, also assaults and the felony of rape, and that is causally linked by the chain of evidence that identified his DNA from [the victim's] vaginal swab. He is certainly guilty of violations of the provision of good conduct. And I find that he has violated his probation...." Appellant asserts that the trial judge thus based his revocation solely on his findings of rape and burglary. However, we cannot conclude that the trial court's brief remarks following the hearing comprised the sum of his findings. Remarks made by a judge who tries a case without a jury will not be construed as his entire findings of fact and conclusions of law when neither party has asked him to set out separate findings and conclusions. Legate v. Passmore, 268 Ark. 1161, 599 S.W.2d 151 (Ark. App. 1980). Furthermore, although Ark. Code Ann. § 5-4-310(b)(5) (Repl. 1997) requires the trial court to prepare a written statement of the evidence relied upon for revocation, the issue is waived when the defendant fails to raise the issue in the trial court. Rutledge v. State, 263 Ark. 300, 564 S.W.2d 511 (1978); Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003).