Hanna v. State
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Cite as 2009 Ark. App. 809
ARKANSAS COURT OF APPEALS
DIVISIONS I, II & III
No.
CACR09-121
Opinion Delivered 2
DECEMBER 2009
RUSSELL ALLEN HANNA,
APPELLANT
APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT,
[NO. CR-03-409]
V.
THE HONORABLE LANCE L.
HANSHAW, JUDGE and
THE HONORABLE SANDY
HUCKABEE, JUDGE
STATE OF ARKANSAS,
APPELLEE
REVERSED and DISMISSED
D.P. MARSHALL JR., Judge
The circuit courts often condition probation or the suspended imposition of a sentence
on restitution. Ark. Code Ann. § 5-4-205(f) (Supp. 2009). When a defendant fails to pay
and resists revocation by asserting an inability to pay, what amount and kind of evidence must
the State offer to justify revocation?
I.
In 2004, Russell Hanna pleaded guilty to Class “C” felony nonsupport. Ark. Code
Ann. § 5-26-401(a), (b)(2)(B) (Supp. 2009). The circuit court placed Hanna on 10 years’
supervised probation and ordered him to make restitution of his $19,382.00 child-support
arrearage. The court fixed the restitution payment in monthly installments of $163.00. This
Cite as 2009 Ark. App. 809
obligation was on top of his existing weekly $53.00 child-support obligation. The State first
petitioned to revoke Hanna’s probation in 2004, but this petition was dismissed at the
probation officer’s request. In 2008, the State again petitioned to revoke.
The revocation hearing was short. The probation officer testified that Hanna currently
owed around $32,000.00 in child support, and had made only one payment of $300.00 within
the last year. The court admitted the 2004 guilty-plea agreement, conditions of probation,
and payment order into evidence. They showed Hanna’s $163.00-a-month and $53.00-aweek obligations. The probation officer also testified that a petition to revoke Hanna’s
probation had been filed “last year” due to nonpayment—this was either the 2004 petition
or a 2007 petition that does not appear in the record. Finally, the probation officer
acknowledged on cross-examination that Hanna was disabled.
Hanna also testified. He confirmed that he was disabled. He also said that his $637.00
monthly social security supplemental income was his only source of income. Hanna stated
that he was and is unable to work. He also said that he had been disabled when he signed the
plea agreement in 2004. He signed the agreement because “[w]ell, I just—I wasn’t able to—I
wasn’t able to work, but I had—you know, I had to do what I could when I could.” On
cross-examination, Hanna clarified that his wife had made the $300.00 payment. The State
asked: “Do you have any change of circumstances that has happened in the last two years that
has prevented you from making efforts to change that was not there in Two Thousand and
Seven?” Hanna gave a nonresponsive answer: “I’m just not able to work.”
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On this record, the circuit court granted the State’s petition. The court found that
“the [S]tate has met its burden of proof, and that the probation is hereby revoked.” A few
weeks later, after a second hearing, the court suspended imposition of nine years’ sentence and
sentenced Hanna to one year in prison. Hanna appeals.
II.
Two statutes, one general and one specific, frame Hanna’s appeal. Probation may be
revoked “if a court finds by a preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his or her suspension or probation.” Ark.
Code Ann. § 5-4-309(d) (Supp. 2009). This is the general revocation statute. It applies
whenever a defendant allegedly violates any condition of a probated or suspended sentence.
E.g., Richardson v. State, 85 Ark. App. 347, 350–51, 157 S.W.3d 536, 538–39 (2004) (failure
to surrender as ordered). In 1993, as a part of a comprehensive statute governing restitution,
the General Assembly adopted restitution-specific revocation provisions. Act of 16 March
1993, No. 533, 1993 Ark. Acts 1493; Act of 16 March 1993, No. 553, 1993 Ark. Acts 1635.
When restitution is ordered as a condition of probation, and the defendant has failed to pay,
a court may revoke “if the defendant has not made a good faith effort to comply with the
order.” Ark. Code Ann. § 5-4-205(f)(2). This statute lists the kinds of facts that will reveal
the probationer’s good-faith effort or lack thereof. “In determining whether to revoke
probation” for a failure to pay restitution, the court “shall consider” the defendant’s
employment status, earning ability, financial resources, the willfulness of the failure to pay, and
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any other special circumstances that may have a bearing on the defendant’s ability to pay.
Ark. Code Ann. § 5-4-205(f)(3)(A)–(E).
The leading precedent recognizes that both statutes apply in these cases. Jordan v. State,
327 Ark. 117, 122, 939 S.W.2d 255, 257 (1997). A good-faith effort to pay restitution is
daylight to an inexcusable failure to pay’s dark. Indeed, before the General Assembly spoke
with specificity in what is now § 5-4-205(f)(3) about some of the various facts bearing on
good faith, the supreme court and this court were considering probationers’ particular
economic circumstances, the quantity of their efforts to pay, and the quality of those efforts
in deciding whether failures to pay restitution were inexcusable. E.g., Hoffman v. State, 289
Ark. 184, 189–90, 711 S.W.2d 151, 153–54 (1986) (standard of living, purchase of
$17,000.00 car, and limited job search); Baldridge v. State, 31 Ark. App. 114, 117–18, 789
S.W.2d 735, 737–38 (1990) (young probationer made some payments while supporting four
dependents by doing all available manual labor). This inquiry reflects the “delicate balance
between the acceptability, and indeed wisdom, of considering all relevant factors when
determining an appropriate sentence for an individual and the impermissibility of imprisoning
a defendant solely because of his lack of financial resources.” Jordan, 327 Ark. at 120, 939
S.W.2d at 256 (quoting Bearden v. Georgia, 461 U.S. 660, 661 (1983)).
The State must prove by a preponderance of the evidence that the probationer
inexcusably failed to comply with his payment obligation. Ark. Code Ann. § 5-4-309(d).
Our cases recognize and apply a shifting burden here. “[O]nce the State has introduced
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evidence of nonpayment, the burden of going forward does shift to the defendant to offer
some reasonable excuse for his failure to pay.” Reese v. State, 26 Ark. App. 42, 44, 759
S.W.2d 576, 577 (1988). The State typically introduces a payment ledger or testimony
demonstrating nonpayment. This kind of evidence shifts the burden of going forward, which
is also known as the burden of production. BLACK’S LAW DICTIONARY 209 (8th ed. 2004).
But the State always retains the ultimate burden of proving that the probationer’s failure to
pay was inexcusable. Ibid.; Thompson v. State, 2009 Ark. 620, at 2; see also BLACK’S LAW
DICTIONARY 209 (8th ed. 2004) (distinguishing between the two components of the burden
of proof: the burden of persuasion and the burden of production or going forward).
This shifting burden of persuasion draws out the probationer’s reason for nonpayment.
Reese, 26 Ark. App. at 44, 759 S.W.2d at 577. “[T]he probationer can[not] sit back and rely
totally upon the trial court to make inquiry into his excuse for nonpayment.” Brown v. State,
10 Ark. App. 387, 389, 664 S.W.2d 507, 508 (1984). Nor must the State negate every
possible excuse for nonpayment—an impossible task—in its case in chief. Reese, supra. The
probationer must explain his failure to pay. If he asserts an inability to pay, then the State
must carry its ultimate burden of demonstrating no good-faith effort by a preponderance of
the evidence. The State must carry this burden of proof guided by the § 5-4-205(f)(2) & (3)
factors. Jordan, 327 Ark. at 121–22, 939 S.W.2d at 257; Phillips v. State, 101 Ark. App. 190,
192–93, 272 S.W.3d 123, 125 (2008). When the probationer asserts an inability to pay, the
State may not stand on the fact of nonpayment alone. Jordan, 327 Ark. at 121–22, 939
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S.W.2d at 257; Phillips, 101 Ark. App. at 192–93, 272 S.W.3d at 125.
The State can carry its burden in many ways. It can undermine the probationer’s
credibility, which is a matter for the circuit court to judge. Gossett v. State, 87 Ark. App. 317,
319–20, 191 S.W.3d 548, 549–50 (2004). The State can show a lack of effort. “[A]
defendant’s failure to make bona fide efforts to seek employment or to borrow money to pay
restitution may justify imprisonment.” Gossett, 87 Ark. App. at 319, 191 S.W.3d at 549; see
also Thompson v. State, 2009 Ark. App. 620, at 5. The State can show that the probationer is
spending his money on something nonessential or illegal instead of paying restitution. E.g.,
Williams v. State, 2009 Ark. App. 554, at 4.
This list is illustrative, not exhaustive. The restitution-specific revocation statute
should guide the proof, both the probationer’s proof of a good-faith effort and the State’s
responding proof showing no such effort. What is the probationer’s employment status and
his earning ability? What are his financial resources? What is his payment history? What are
all the relevant circumstances about the willfulness of his nonpayment and his ability to pay?
Ark. Code Ann. § 5-4-205(f)(3). And just as it guides the proof, this statute must guide the
circuit court’s findings in a purported inability-to-pay case. Jordan, 327 Ark. at 120–22, 939
S.W.2d at 256–57.
Some of our precedents emphasize the good-faith inquiry under § 5-4-205(f), while
others consider the issue as a matter of inexcusability under § 5-4-309(d). Compare Gossett,
87 Ark. App. at 319–320, 191 S.W.3d at 549–50, with Thompson v. State, 2009 Ark. App. 620,
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at 2–5. There is less to this distinction than meets the eye. Willfulness is a specified factor
under the restitution-specific statute, and this factor overlaps with inexcusableness under the
general revocation statute. We routinely consider the probationer’s employment record, as
well as what he is spending his money on, no matter which statute we cite. To the extent
there is any conflict between the statutes, of course the more specific provision controls. E.g.,
Wal-Mart Stores, Inc. v. D.A.N. Joint Ventures III, L.P., 374 Ark. 489, 494, 288 S.W.3d 627,
632 (2008). But we see no conflict. As Jordan holds, we, and the circuit courts, must apply
§ 5-4-309(d)’s general “inexcusably failed to comply” standard as refined by § 5-4-205(f)’s
restitution-specific factors in all failure-to–pay cases where the probationer asserts an inability
to pay. Jordan, 327 Ark. at 120–22, 939 S.W.2d at 256–57.
III.
In this case, the State failed to prove an inexcusable failure to pay by a preponderance
of the evidence. The State offered proof of nonpayment. Reese, supra. Hanna’s probation
officer testified that Hanna had made only one payment in the last year. This evidence shifted
the burden of going forward to Hanna. He had to produce evidence showing, in light of all
material circumstances, a good-faith effort to pay. Ark. Code Ann. § 5-4-205(f)(2). Or as
expressed in our older cases, he had to offer a reasonable excuse for his nonpayment.
Baldridge, 31 Ark. App. at 116, 789 S.W.2d at 737.
He did. At the hearing, Hanna testified that he was disabled and unable to work. He
said that he had only one source of income: his monthly SSI disability benefits. Hanna’s SSI
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is not income for child-support purposes. Davis v. Office of Child Support Enforcement, 341 Ark.
349, 358, 20 S.W.3d 273, 278 (2000). Hanna made this argument at his sentencing hearing,
but has abandoned it on appeal. We must therefore consider the circuit court’s decision in
the case as if Hanna had $637.00 in monthly income. In addition, the State proved a monthly
support/restitution obligation of almost $400.00, and one $300.00 payment made with the
help of Hanna’s wife. The probation officer and Hanna agreed on another fact: Hanna was
disabled. Finally, the State proved that Hanna had promised, in his plea agreement, to make
restitution when his circumstances were about the same as they were at the time of
revocation. The circuit court concluded, on this record, that the State had met its burden
of proof.
We are left with the definite and firm conviction that the circuit court made a mistake.
Foster v. State, 104 Ark. App. 108, 109–10, 289 S.W.3d 476, 477 (2008); Ridenhour v. State,
98 Ark. App. 116, 119–20, 250 S.W.3d 566, 569 (2007). Hanna’s failure to pay was
undisputed. Hanna asserted an inability to pay based on disability. The State’s proof had
confirmed his disability. There was thus no credibility judgment for the circuit court to make
on this issue. Cf. Hodgson v. State, 2009 Ark. App. 691, at 2–3. The State did show that,
through his wife, Hanna was able to make one payment. Cf. Gossett, 87 Ark. App. at 319–20,
191 S.W.3d at 549–50. The State offered no evidence, however, of Hanna’s other sources
of income, his assets, or his expenses. Cf. Ark. Code Ann. § 5-4-205(f)(3). The State could
have done so by cross-examining Hanna about these facts. Or the State could have offered
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proof about them in rebuttal. None of this was done. Taken as a whole, the preponderance
of the evidence does not weigh in favor of a lack of good-faith effort or an inexcusable failure
to pay. The State simply failed to prove, either directly or circumstantially, that Hanna’s
failure to pay restitution was based on anything other than his inability to pay. That
circumstance is an insufficient basis for revocation. Jordan, supra.
IV.
In almost every similar case where the appellate court has reversed, the court also
remanded for more findings on the existing record. E.g., Bearden, 461 U.S. at 674; Jordan, 327
Ark. at 123, 939 S.W.2d at 258; Phillips, 101 Ark. App. at 193, 272 S.W.3d at 125. But the
records in those cases were full of facts, and the defect was in the trial court’s incomplete
findings on those facts. This case is different. The defect here is in the proof, not in the
findings on the proof. And the failure of the State’s proof requires that we reverse the
revocation order and dismiss the petition. Wilcox v. State, 99 Ark. App. 220, 222, 258 S.W.3d
785, 787 (2007).
Hanna’s underlying obligation to support his child, as reflected in the original support
order, remains intact. “A parent has a legal and moral duty to support and educate his child
and to provide the necessities of life . . ..” Lee v. Lee, 95 Ark. App. 69, 75, 233 S.W.3d 698,
703 (2006). Hanna’s obligation to make restitution for back child support, as agreed in the
2004 payment order, likewise remains undisturbed. Judgment and commitment order
reversed and petition to revoke dismissed.
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VAUGHT, C.J., and HART, KINARD, and BAKER, JJ., agree.
PITTMAN, GLADWIN, GLOVER, and HENRY, JJ., dissent.
GLOVER, J., dissenting. I disagree with the majority’s analysis in this felony nonsupport probation revocation matter resulting in a 5-4 decision. The case turns on one’s
interpretation of the sufficiency of proof to shift the burden of going forward. See Reese v.
State, 26 Ark. App. 42, 759 S.W.2d 576 (1988); Brown v. State, 10 Ark. App. 387, 664
S.W.2d 507 (1984).
In an even-handed manner the majority opinion lays out the statutory provisions
for general revocation (inexcusable failure) and restitution-specific revocation (good-faith
effort). The opinion then fairly and accurately identifies and applies those controlling
decisions of this court and our supreme court.
Legal principles have been developed over time that govern all probation
revocation hearings. The burden of proof for the State is a preponderance of the
evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826 (1998). The Arkansas Rules
of Evidence are not strictly applied in revocation hearings. Tipton v. State, 47 Ark. App.
187, 887 S.W.2d 540 (1994). The State needs only to prove one violation to sustain
revocation. See Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). Our appellate
courts defer to the superior position of the trial court on questions of credibility and the
weight to be given the evidence. Gossett v. State, 87 Ark. App. 317, 191 S.W.3d 548
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(2004). This court will not reverse the trial court’s decision to revoke probation unless it
is clearly against the preponderance of the evidence. Stinnett, supra.
The trial judge knew a great deal more about Russell Hanna, the probationer, than
what was revealed at the revocation hearing:
1.
The Conviction
Hanna had a child out of wedlock in 1994; his failure to support began in 1996; his
non-support continued eight years until 2004; in 2003 a Class C felony nonsupport information was filed; in 2003, Hanna filed an affidavit of indigency stating
that he was single, he lived with Amanda Dixon, with whom he had two additional
younger children, and his employer was “Razorback”; in 2004 Hanna pleaded nolo
contendere to the Class C felony offense of non-support because he was in arrears
on his child-support obligation in the sum of $19,382; Hanna was given a break —
he was not sentenced to prison for this felony, rather he was sentenced to ten years’
supervised probation; one condition of probation was that he make restitution of
the child-support arrearage in monthly installments of $163 in addition to paying
his current support obligation of $53 per week.
2.
The State’s First Revocation Petition
The State filed a petition to revoke Hanna’s probation in 2004; in 2006 Hanna
posted a $2500 bond and completed an affidavit of indigency in which he stated
Dixon was now his wife, they still had two children who lived in the home with
them, and he was not employed at that time; Hanna engaged an attorney who
entered his appearance on September 7, 2006, and requested a continuance the
same day; in May 2007, Hanna caught another break when an order was entered
dismissing the petition for revocation at the request of the probation officer; in June
2007, Hanna made a $300 payment.
3.
The State’s Second Revocation Petition
On May 16, 2008, the State filed another petition to revoke Hanna’s probation,
alleging delinquency in the payment of his restitution; in June 2008, Hanna posted
a $2500 bond; as of August 2008, he was in arrears on his child-support obligation
in the amount of $31,999.70. At the revocation hearing, Hanna’s probation officer
stated he was aware that Hanna was disabled. Hanna testified he was disabled when
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he pleaded guilty in 2004; that he knew then he was going to have to pay
restitution; and that he agreed to that condition when he was placed on probation.
Hanna acknowledged nothing had changed from 2007 to 2008, and that his wife
helped him to make the $300 payment in 2007. He said he could not live up to his
obligations because he was unable to work. Hanna was represented by counsel at
the revocation hearing.
What a probationer must do when the burden of going forward passes to him is not
a new concept. Our court, in Brown, supra, a revocation case not involving non-support,
offered instruction to all probationers:
In the instant case, appellant was represented by counsel and little, if any,
explanation was provided by appellant for his failure to pay restitution. In such
proceedings where the probationer is represented by counsel, we do not believe the
probationer can sit back and rely totally upon the trial court to make inquiry into
his excuses for non-payment. The defendant should go forward with whatever
evidence he has in an attempt to establish excusable reasons why he did not pay the
fine or restitution.
Brown, 10 Ark. App. at 389, 664 S.W.2d at 508.
Likewise, our court again echoed this sentiment toward “burden shifting” in Reese,
supra, as follows:
The burden of proof does not shift. However, once the State has introduced
evidence of non-payment, the burden of going forward does shift to the defendant
to offer some reasonable excuse for his failure to pay. To hold otherwise would
place a burden upon the State which it could never meet—it would require the
State, as part of its case in chief, to negate any possible excuses for non-payment.
Reese, 26 Ark. App. at 44, 759 S.W.2d at 577 (citations omitted); see also Thompson v. State,
2009 Ark. App. 620, ___ S.W.3d ___.
Our appellate courts in more recent cases have even offered proof sources for nonsupport probationers. A probationer may avoid the determination that his failure is willful
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if he shows bona fide efforts to seek employment or to borrow money to pay restitution.
Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997); Gossett, supra.
The record is telling about this probationer for appellate review purposes. It shows
Hanna had some means of financial ability, but he failed to pay. The record also shows
that Hanna had the ability to work; but, when asked, he asserted his inability. In separate
affidavits of indigency, Hanna declared he was employed in 2004 and unemployed in
2006. Facing successive petitions to revoke, in 2006 and again in 2008, he posted separate
$2500 bonds. See Gossett, supra (evidence of ability to secure money for release from jail
following arrest is factor to be considered in failure to pay restitution). Following the
dismissal by the State in 2007 of the 2004 revocation petition and, thereby dodging
imprisonment for the second time, Hanna immediately showed the ability to pay $300.
At his revocation hearing, he attributed help with the $300 payment to his wife. Further,
with counsel present at his revocation hearing, he did not conform his proof to the
Jordan/Gossett standard by showing bona fide efforts to seek employment or to borrow
money. The record implies that doing either obviously was not a priority for him.
Instead, as in Brown, supra, he “[sat] back.” On direct examination, he merely offered his
opinion of his inability to work. When cross-examined by the State, he was clearly
evasive, again asserting that he was “just not able to work.” His statement of opinion,
without more, is simply not an explanation as to why he was unable to pay his childsupport payments. It is plausible that the judge did not believe Hanna’s assertions. I find
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it compelling that the record reflects no attempt by Hanna to have the amount of his child
support reduced due to a change in his circumstances.
The revocation hearing began with the testimony of Hanna’s probation officer and
then quickly turned to the testimony of Hanna himself, they being the only witnesses.
The hearing was indeed short! Just as the State presented a weak case, Hanna equaled the
effort. But because of the case history, which could be supplemented by the State’s proof,
the State did enough.
This brings us squarely to the issue that separates five members from four members
on this court when deciding the disposition of this case. The majority concludes Hanna
did enough (showed up) and said enough (“I’m disabled”). On this premise, the majority
interprets our case law that Hanna, through his magic words, shifted the burden back to
the State. I think not. “I’m disabled,” in my view, is Hanna’s opinion, nothing more.
Historically, it was the same disabled person who pleaded nolo contendere to Class C
felony non-support in 2004; and the same disabled person who increased his criminal debt
responsibility of $19,382 in 2004 to $31,999 in 2008—a $12,600 increase after he had
received breaks both in 2004 and 2007 with no imprisonment. The State met its burden
of going forward, and that burden shifted to Hanna when the State showed he made one
support/restitution payment in 2007 and there existed a $31,999 arrearage in 2008. In my
view, Hanna failed to meet his shifting burden.
By its analysis, the majority has eviscerated any responsibility accorded our circuit
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courts for judging credibility and determining the weight to be afforded witness testimony,
an established legal principle governing revocation proceedings.
Here, the trial court knew the long history of Hanna’s non-compliance when it
considered the short hearing record made by the parties. By his own admission, Hanna
acknowledged there was no change in his circumstances since he had been placed on
probation and agreed to the restitution payment schedule. He had promised to pay then.
His word is important. People actually depended on it; there was reliance on his word.
Hanna, however, had obviously done nothing, ever; and it was thereby no accident he
was again facing revocation with his own attorney by his side in 2008. The majority will
agree that he completely and totally abdicated even the barest effort to be a responsible
parent. Why did he? I contend that it was a deliberate choice. But, again, the case does
not turn on either of these observations. Because they are true, however, these
observations do take away any argument Hanna could otherwise have made as a
reasonable excuse for his failure to pay. From my review of the record, I cannot classify
his failure as excusable or reasonable.
The majority rests on its conclusory statement, “The State’s proof had confirmed
his disability.” Hanna’s “disability,” though, was not a new or different factor at the
hearing. It was an historical constant in this case. Hanna testified he had become disabled
in 1994, which happens to be the birth year of his oldest child, whom he quit supporting
in 1996, leading to his exposure to the criminal-justice system in 2003.
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There is an SSI reference woven into the majority’s opinion. Hanna testified at the
hearing he was drawing SSI disability benefits. For reasons later stated, he apparently had
just begun to receive his SSI stipend. For our purposes, in considering this appeal, it does
not matter that the majority is willing to concede the availability of the $637 monthly SSI
benefit Hanna is now receiving “since his argument on this point at the sentencing hearing
was abandoned on appeal.” The record does not reflect when Hanna qualified for SSI,
which is not income for child-support purposes. From the sentencing hearing (which is
not a part of the liability determination), we know the State at that time had begun the
process of closing its file on Hanna in compliance with federal policy protecting SSI
recipients. I therefore conclude Hanna was appropriately charged and later arrested, at
which time he bonded his release for appearance at the revocation hearing to address his
pre-SSI non-support liability. It is not known when he qualified for SSI benefits, but the
matter of SSI was first put in the record at the revocation hearing.
I dissent because I am left with the definite and firm conviction that the circuit
court did not err. When considering the lower burden of proof in revocation proceedings
and giving the proper deference to the superior position of the trial court to determine
questions of credibility and the weight to be given the evidence, the State sufficiently met
its burden of proof to revoke Hanna’s probation. The trial court found that the State had
met its burden of proof and ordered revocation of Hanna’s probation, and I would affirm
that revocation.
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I am authorized to state that Judges PITTMAN, GLADWIN, and HENRY join in this
dissent.
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