*1
Ozark
that the
should have
argues
judge
cross-appeal
found the releases
it
from
discharged
completely
liability
damages within the
But there was
right-of-way.
dispute
land within the
damages
whether the releases
covered
to the
only
This issue of fact was
damages
also
outside it.
right-of-way
Parker,
v.
Ark.
submitted to the
Abbott
properly
jury.
(1912).
Ozark also that the should not have complains instructed the because the matter was jury trespass completely contractual between the found no parties. jury trespass so the damages, could not have been We appellees prejudiced. will not reverse no where is shown. Bank & prejudice Peoples Wallace, Trust Co. v. 721 S.W.2d (1987). Affirmed. v. STATE L. SUMMERS of Arkansas
Jimmy
CR 86-200
Supreme Arkansas delivered Opinion May *2 Defender, Petty, Jim Public for appellant. Clark, Gen.,
Steve William F. Asst. Att’y by: Knight, Att’y Gen., for appellee. Justice. The trial court revoked the Hickman,
Darrell After the appellant’s probationary sentence. concluded parties their presentation of evidence at the revocation Sum- mers moved to dismiss the for orally revocation because the was not held within hearing of his arrest. The trial court took that motion and another oral motion under advisement and the next ruled the held. He day hearing timely should have ruled the motion was made too late.
Summers hot checks in pleaded guilty writing August, 1985, and was on five placed probation years. A 7, 1986, revoke his sentence was filed March several alleging violations of his conditions: Summers had failed to probation keep officer, with his monthly appointments failed to probation pay fee and failed to make monthly probation on his fine payments and restitution. A warrant was issued for Summers’ arrest on 7, 1986, and served on April
Counsel was hearing was held in appointed pretrial 4,1986. and a on the was held May, hearing June witness, The state called one only officer. He probation testified about the conditions of and Summers’ probation breach of those conditions. Summers testified that he was arrested in Arizona on March 24 or 25 for violations.” He said he “probation was in jail in Arizona for five he weeks before was returned to Arkansas.
After the had concluded the parties presentation evidence, the moved to dismiss the orally because the was not held hearing within the 60 time as day required 41-1209(2) Ark. Stat. Ann. 1977), which (Repl. § provides:
A or shall not be revoked after suspension probation except be Such shall conducted by the court that suspended sentence defend- imposition ant him on within placed probation a reasonable period time, not to exceed 60 after the defendant’s days, matter attorneys argued the trial briefly judge. argued Summers his arrest in Arizona began running 60 day argued The state the arrest in Arkansas period. began running time for because the record only reflected that arrest. The took the matter under advisement and the next that ruled Summers was arrested 29, 1987, and the was held April statutory time period.
On Summers appeal argues the 60 limitation day requires be dismissed. The argues state the motion was We with untimely. agree the state because the state was never placed on notice before the that this would be objection raised. There was no reason motion good given why the was not State, 441, 637 filed before the Lark v. hearing. both State, (1982), 34, 696 S.W.2d 529 Cheshire v. and 16 Ark. App. (1985), S.W.2d 322 a motion to dismiss a revocation filed before the hearing. The state was on notice the period would be statutory invoked.
In this case the state
no such
had
notice. The state was
prejudiced by
lack
notice because it did not
have
opportunity
present any
regarding
evidence
whether there was
a
returning Summers to Arkansas and whether he was
unavailable
that time
The
had
during
period.
state
a right
assume that would
be an
This
not
issue.
court has referred to the
trial rules to determine if
speedy
a defendant received a speedy
State,
State,
v.
revocation
Lark
Boone v.
hearing.
supra;
State,
83, 603
Ark.
(1980);
S.W.2d 410
v.
Cheshire
Those
supra.
govern
same rules
when that
can be raised. A.R.Cr.P.
question
28.1(f)
Rule
move
provides
defendant’s failure to
dismissal
a
for lack
charge
speedy
prior
to trial
v.
rights
constitutes waiver of
under these rules. See Walker
State,
Ark.
did
(1986).
Affirmed. JJ., dissent. Newbern, and
Purtle Justice, dissenting. disagree I vigorously Purtle, I. John statute, Ark. Stat. Ann. with The the majority opinion. §41- and so 1977), majority is set out in the 1209(2) (Repl. at this again point: that I will set it out states the law clearly be revoked after except A shall not suspension probation by be conducted shall a revocation Such defend- of sentence on imposition the court that suspended a reasonable period ant or him on probation placed time, after the defendant’s days, not to exceed 60 [Emphasis added.] conduct a The law and the court to unequivocally requires clearly the defendant’s not more than 60 after arrest on the violation. alleged the trial court
In the case now considered this Court being The court sentenced the 1985. accepted appellant’s guilty plea (5) to five him on years placed probation. A to revoke was filed on March probation *4 warrant was issued and the was arrested in Arizona on appellant 26,1986. did not extradition nor did he the fight He in jail in manner. The remained in the any appellant warrant until Arizona from the of his arrest on the violation Arkansas, he of about five weeks. the period By was returned to 4, 1986, had hearing, date of the revocation June the appellant an fiveweeks in the in White county jail County, additional spent in Arkansas. The I it that’s over way figure seventy days the was held argue book. No would that anybody’s person within 60 of the arrest to the warrant. appellant’s pursuant not to the sought
This Court some reason obviously apply words and obvious of the statute. The plain meaning majority under the rights holds that the waived his opinion appellant statute because he did not raise his motion to dismiss the before the for lack of a speedy The this the hearing. majority by result to accomplishes analogy trial rules. Other than the statement of court June speedy the 5, 1986, the that before the court on appellant appeared May and that was I counsel find no evidence in the appointed, record that the was afforded appellant opportunity any request any 4,1986. Moreover, of type action until June I am unaware of any precedent for the that a defendant waives proposition rights his under the revocation statute unless moves for dismissal the whole petition prior the is law to purpose safeguard rights the of individuals. the present case the same result could have been without accomplished damage to the law by simply filing continuing another on the the violation of restitution, which appellant’s probation, required payments and then acting it. timely upon 29th,
The warrant itself may not have been until served April but that not is the under the trigger statute which starts calendar rolling. It is clearly the arrest which appellant triggers the running of the 60-day limitation. The majority State, cites the cases of Walker v. 288 Ark. Lark v. State, (1986); 441, 637 S.W.2d 372 276 Ark. S.W.2d 529 State, (1982); 83, 603 and Boone v. S.W.2d 410 (1980). None of them hit the point. dealt
Walker with the trial speedy issue and is somewhat to the analogous case. In neither present case were there any excludable periods. Walker’s failed move attorney for dismis- sal trial although had run speedy prior to trial. A.R.Cr.P. Rule 28.1 that failure to invoke the provides speedy trial rule constitutes Walker a waiver. The case came to us way of a Rule relief based request upon ineffective assistance counsel. We reversed and and in so “The doing dismissed stated: appellant not clearly holding during was that time.” up Neither case. He invoked present merely first held than 60-day period at the which was more days after
I with the Lark decision agree that the majority opinion involved the same statute as we are case. very considering *5 Lark had been committed to own the state hospital, upon motion, subsequent petition to his arrest on a for revocation. Lark was on arrested He for a mental February petitioned on 31 and examination, granted which was petition 11,1981 to state On June hospital. resulted in commitment from the state jail hospital. the county he was returned to 20,1981, time which at July was conducted hearing hearing him to a failure bring Lark dismiss because of moved to August until The court continued the days. had not been properly that the defendant grounds However, then the state for revocation. served with the petition 22, 1981, the and on July refiled the at a same On we reversed appeal court revoked sentence. suspended not conducted dismissed the revocation was because limit, caused excluding within the 60-day the appellant. revoked a sentence. suspended court
In Boone However, was was never arrested because charge on an when the serving sentence unrelated should run from argued day period revoke filed. Boone was that he argued the date of the to revoke. He filing date the was filed. arrested” on the “constructively theory Boone’s agreed Neither court nor this Court with the trial However, date. we modified establish a “constructive arrest” give jail my the sentence in order to credit for time served. Boone is inapposite. I give believe we should continue to limitation 60-day a rational and reasonable in accordance provision interpretation with our decisions. To from the and clear past depart plain in results language used our decisions the statute past upholding only confusion and in the law to revocation uncertainty relating of probation. J.,
Newbern, joins this dissent.