Dority v. State

Stephanie DORITY v. STATE of Arkansas

CR 97-66                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 25, 1997


1.   Criminal procedure -- probation revocation -- hearing not stage of criminal
     prosecution. -- Although the constitutional right to a speedy
     trial, as embodied in Ark. R. Crim. P. 28.1, is available to
     an accused in a stage of criminal prosecution, the United
     States Supreme Court has held that a probation revocation
     hearing is not a stage of criminal prosecution. 

2.   Criminal procedure -- probation revocation -- no absolute right to hearing
     within twelve months. -- In a probation revocation hearing, a
     trial has already been held, and the defendant convicted;
     while a hearing must be held within a reasonable time, there
     is no absolute right, as in criminal prosecutions, to be heard
     within twelve months; what constitutes a reasonable time must
     be determined upon the facts of the particular case.

3.   Criminal procedure -- probation revocation -- appellant had no right to
     hearing within twelve months. -- Where appellant did not allege
     that her probation revocation hearing did not take place
     within a reasonable time but asserted that her right to a
     speedy trial was violated because her hearing did not take
     place within a year of her revocation petition, the supreme
     court held that she had no right to avail herself of the
     provisions of Ark. R. Crim. P. 28.1, which require a trial
     within twelve months, because her probation revocation hearing
     was not a criminal prosecution.

4.   Criminal procedure -- probation revocation -- standard of review. -- The
     appellate court reviews a trial court's decision to revoke
     probation in the light most favorable to the State and affirms
     if the decision is supported by a preponderance of the
     evidence.

5.   Criminal procedure -- probation revocation -- trial court's finding that
     violations were inexcusable upheld. -- Where appellant admitted that
     she did not notify the probation officer of her change of
     address and that she purposely failed to report because she
     was "hiding out" from police after she "caught" a drug charge,
     the supreme court concluded that the trial court's finding
     that these violations were inexcusable was not clearly against
     the preponderance of the evidence.


     Appeal from Mississippi Circuit Court; John Fogleman, Judge;
affirmed.
     John H. Bradley, for appellant.
     Winston Bryant, Att'y Gen., by:  Gil Dudley, Asst. Att'y Gen.,
for appellee.

     Ray Thornton, Justice.
     This appeal raises the question whether Ark. R. Crim. P. 28.1,
which requires that a defendant be tried within twelve months from
the time she is charged with an offense in circuit court, applies
to a revocation of probation.  The trial court found that the rule
does not apply because, in a probation revocation hearing, the
defendant is not charged with an offense, but is alleged to have
violated the terms of a previously imposed sentence on an offense. 
This is a question of first impression for this court.  The
reasoning of the trial court is sound, and we affirm.
     A felony information was filed against Stephanie Dority,
appellant, on May 9, 1993, charging her with second-degree battery,
disorderly conduct, and refusal to submit to arrest.  She pleaded
guilty to the battery charge, and the other charges were dismissed. 
On November 9, 1993, the trial court entered an order of probation,
which required her, among other things, to report as directed to
her parole officer, promptly notify the sheriff and probation
officer of any change of address, pay $15.00 per month probation
fee, and pay installments of $25.00 per month on a $155.00 fine.
     Two petitions for revocation were filed; one on March 14,
1994, and one on February 15, 1995.  The first petition stated that
appellant had failed to pay $155.95 on her fine, costs, and
restitution.  The second one stated that she had failed to notify
her probation officer and sheriff of any change of address or
employment, failed to cooperate with the probation officer "and/or"
report as directed, failed to pay probation fees, and failed to pay
fines and court costs.
     A revocation hearing was held on June 24, 1996.  Appellant
argued that her right to a speedy trial had been violated because
the hearing was held more than one year after the petition to
revoke probation had been filed.  The court agreed that more than
one year had passed and that the extra time periods were not
excludable.  However, it ruled that appellant had no right to a
hearing within a year under the provisions of Ark. R. Crim. P. 28.1
because the constitutional right to a speedy trial does not apply
to revocation hearings, and proceeded to hear testimony.
     Appellant's probation officer testified that appellant's
records indicated that she had only reported once in fifteen
months.  She did not meet with an officer in person, but slid a
note under his door.  He stated that he had attempted to locate
her, but she had moved.  Appellant did not report any changes of
address, and the officer filed a report on February 14, 1995,
listing her as a absconder because he could not locate her.
     Appellant testified that she hadn't paid her fees because she
only receives $162.00 per month through Aid for Families with
Dependent Children.  She said that she had not reported to the
probation officer because she had "caught" a drug charge and had
assumed that she was not supposed to report after that.  She said
that she had moved three times since she had been put on probation. 
She admitted that she had not notified the officer of any changes
of address.  She said that she had been "hiding out" from police
since she "caught" the drug charge.
     The court found that appellant had inexcusably violated her
probation and sentenced her to four years' imprisonment.  Appellant
argues on appeal that the trial court erred in determining that the
constitutional right to a speedy trial does not apply to a
revocation proceeding, and she contends that its finding that she
inexcusably violated her probation is not supported by the
preponderance of the evidence.
     As we consider appellant's speedy-trial argument, we recognize
that the constitutional right to a speedy trial, as embodied in
Ark. R. Crim. P. 28.1, is available to an accused in a stage of
criminal prosecution.  The Sixth Amendment provides, "In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial."  U.S. Const. amend. VI.  However, in
Gagnon v. Scarpelli, 411 U.S. 778 (1973), the United States Supreme
Court held that a probation revocation hearing is not a stage of
criminal prosecution.  As we pointed out when considering another
issue in Padilla v. State, 279 Ark. 100, 648 S.W.2d 797 (1983), in
a probation revocation hearing, a trial has already been held, and
the defendant convicted.  While a hearing must be held within a
reasonable time, there is no absolute right, as in criminal
prosecutions, to be heard within twelve months.  What constitutes
a reasonable time must be determined upon the facts of the
particular case.  See Moody v. Daggett, 429 U.S. 78 (1976); United
States v. Jackson, 590 F.2d 121 (1979); Fed. R. Crim. Pro. 32.1. 
Appellant does not allege that her hearing did not take place
within a reasonable time, but that her right to a speedy trial was
violated because her hearing did not take place within a year of
her revocation petition.  We hold that appellant had no right to
avail herself of the provisions of Ark. R. Crim. P. 28.1, which
require a trial within twelve months, because her probation
revocation hearing was not a criminal prosecution.
     Having determined that the constitutional right to speedy
trial does not apply to probation revocations, we turn to
appellant's second argument that the trial court erred in
determining that she inexcusably violated the terms of her
probation.  Under Ark. Code Ann.  5-4-309 (Repl. 1993), a court
may revoke a defendant's probation if it finds by a preponderance
of the evidence that she inexcusably violated the conditions of her
probation.  Id.  5-4-309(d).  We review a trial court's decision
to revoke probation in the light most favorable to the State, and
will affirm if the decision is supported by a preponderance of the
evidence.  Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993). 
     Here, appellant admitted that she did not notify the probation
officer of her change of address and that she purposely failed to
report because she was "hiding out" from police after she "caught"
a drug charge.  The trial court's finding that these violations
were inexcusable is not clearly against the preponderance of the
evidence.
     We affirm.