evidence may be insufficient in probation-revocation proceedings to sustain allegation that appellant committed specific offense, but revocation will be sustained if evidence establishes lesser-included offense
How later courts described this case
- evidence may be insufficient in probation-revocation proceedings to sustain allegation that appellant committed specific offense, but revocation will be sustained if evidence establishes lesser-included offense
Written by the judges who cited it.
The opinion
ANDREE LAYTON Roaf, Judge, dissenting. I would grant Obbie Willis’s petition for rehearing and reverse this revocation for the reasons set out in my dissenting opinion on November 28, 2001, and because contrary to the State’s assertion, opinions of the Attorney General are not accorded the status of Binding precedent by the appellate courts of this State. City of Fayetteville v. Edmark, 304 Ark. 179 , 801 S.W.2d 275 (1990); Klinger v. City of Fayetteville, 293 Ark. 128 , 732 S.W.2d 859 (1987). Consequently, it is for a court to say whether there is such an offense as “first-degree domestic battery,” Ark. Code Ann. § 5-36-303 (a)(4), not the Attorney General. Courts should likewise decide whether it is permissible to send a man to the penitentiary based on a nonexistent criminal offense, as long as the evidence shows that he possibly committed some other uncharged offense. To do so is indeed to dispense “slipshod justice,” and while Willis may not have made the most cogent argument in this respect, he did assert that the sole basis for his revocation was “the primary charged offense” — an offense that does not exist in Arkansas.