Robert L. Wann v. State of Arkansas
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Judge Miller’s unpublished opinion for 103107
DIVISION II
CACR061423
October 31, 2007
ROBERT L. WANN AN APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT
[CR05
932C]
v.
HON. J. MICHAEL FITZHUGH, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Robert L. Wann appeals the revocation of his suspended imposition of sentence on
an underlying charge of breaking or entering, a Class D felony. The conditions of Wann’s
suspended sentence required that he pay a $750 fine (including a $250 DNA fee) and $150
in court costs at the rate of fifty dollars a month. Wann argues that the State failed to show
that he violated the conditions of his suspended sentence. We affirm.
The State petitioned to revoke Wann’s suspended sentence on February 23, 2006,
alleging, among other things, that Wann violated the conditions of his suspension by failing
to pay courtordered fines, costs, and DNA fees. A suspended sentence may be revoked at
any time prior to the expiration of the period of suspension when the court finds by a
preponderance of the evidence that the defendant has inexcusably failed to comply with a
condition of suspension. Ark. Code Ann. § 54309(d) (Repl. 2006); Williams v. State, 351
Ark. 229, 91 S.W.3d 68 (2002). This court will not reverse a trial court’s decision to revoke
unless it is clearly against the preponderance of the evidence. Id. We give great deference
to the trial court in determining the preponderance of the evidence because the trial judge is
in a superior position to determine the credibility of witnesses and to determine the weight
to be given to their testimony. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536
(2004). Indeed, the State need only show that the appellant committed one violation in order
to sustain a revocation. Id.
Where the alleged violation is a failure to make courtordered payments, the State has
the burden of proving by a preponderance of the evidence that the failure to pay was
inexcusable. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988). Once the State has
introduced evidence of nonpayment, the burden shifts to the defendant to offer some
reasonable excuse for his failure to pay. Id.
At his April 19, 2006 revocation hearing, Wann admitted that he failed to make the
courtordered payments. He testified, however, that on two separate occasions, he gave his
fine money to his girlfriend and that the money was stolen from her. He further testified that
he was trying to get the money to pay his fines and that he had contacted his attorney to ask
whether he could work off his fines. The trial court held that Wann violated his suspended
sentence and sentenced him to three years in prison and a threeyear suspended sentence
upon release from prison.
The ruling of the trial court is affirmed because it did not err in revoking Wann’s
suspended sentence. We reviewed the record to reach this opinion because Wann’s brief was
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deficient, in that his addendum contained neither the original terms and conditions of his
suspension nor the revocation petition. See Lewis v. State, 84 Ark. App. 327, 139 S.W.3d
810 (2004)(holding that the appellate court may review the record to affirm).
By his own admission, Wann failed to pay courtordered fines. Although he offered
reasons as to why he failed to pay his fines, the trial court weighed the evidence and
apparently determined that Wann’s testimony was not credible. The trial court is better
positioned than we are to determine the credibility of witnesses and therefore, we find no
error.
Affirmed.
HART and GLOVER, JJ., agree.
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