2016 Ark. App. 335
Ark. Ct. App.2016Background
- Jimmy Mack Short was placed on five years’ probation in Jan. 2014 after pleading guilty to violating the Arkansas Sex Offender Registration Act.
- The State petitioned to revoke probation in Feb. 2015, alleging failures to pay fines/costs/fees, failure to report to probation, failure to pay probation fees, failure to notify of current address/employment, and violation of the registration act.
- Evidence at the Aug. 2015 revocation hearing: registry supervisor and probation officer testified Short stopped reporting after Sept. 2, 2014; a warrant issued and Short was later arrested in Tennessee; Short owed fines and probation fees.
- Short testified he was disabled, on government assistance, lacked transportation, admitted missing required reporting, and promised to increase payments if retained on probation.
- The circuit court found violations (failure to report, violation of registration act, failure to notify probation of address, and general failure to be of good behavior), exempted him from further payments due to disability, and sentenced him to three years’ imprisonment followed by three years’ SIS. Appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to revoke probation | State: testimony and Short’s admissions support revocation | Short: (via counsel) argued no meritorious appellate issue; challenged preservation of sufficiency claim | Court: Evidence (officers’ testimony and Short’s admissions) supports revocation; one violation is sufficient |
| Preservation of challenge to sufficiency of evidence | N/A (State sought revocation) | Short’s counsel contended defendant failed to renew motion so claim not preserved on appeal | Court: Preservation rule for Rule 33.1 doesn’t apply to revocation hearings; sufficiency challenge is preserved but meritless |
| Counsel’s request to withdraw under Anders/Rule 4-3(k)(1) | N/A | Counsel moved to withdraw, filing a no-merit brief addressing adverse rulings | Court: Found compliance with Anders/Rule 4-3(k)(1); granted motion to withdraw |
| Error in written SIS conditions | N/A | Defense noted SIS conditions incorrectly state a negotiated guilty plea | Court: Agreed this was clerical/error and remanded to correct SIS conditions |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishes procedures for counsel to withdraw when appeal is frivolous)
- Barbee v. State, 346 Ark. 185 (2001) (Arkansas court: Ark. R. Crim. P. 33.1 preservation rule does not apply to revocation hearings)
- Richardson v. State, 85 Ark. App. 347 (2004) (one proven probation violation is sufficient to support revocation)
- Britt v. State, 468 S.W.3d 285 (Ark. App. 2015) (clerical errors in postrevocation documents should be corrected on remand)