holding that failing to move to suppress or otherwise object prevents a challenge to the search and subsequent admissibility of evidence in revocation proceeding
How later courts described this case
- holding that failing to move to suppress or otherwise object prevents a challenge to the search and subsequent admissibility of evidence in revocation proceeding
- ‘Whether there is proof that a probationer received written conditions of probation is a procedural matter, and not one of the sufficiency of the evidence, because the purpose of providing the conditions in writing is to prevent confusion on the probationer’s part.”
Written by the judges who cited it.
The opinion
Wendell L. Griffen, Judge, dissenting. In Whitener v. State, 96 Ark. App. 354 , 241 S.W.3d 779 (2006), this court acknowledged the well-settled rule that no motion or objection is necessary to preserve a challenge in a revocation proceeding. Nonetheless, it held that the failure to introduce the terms and conditions of a suspended sentence must be brought to the attention of the trial court; otherwise, any objection for the failure to do so is waived. I disagreed with the majority and wrote a dissenting opinion. I still believe, based on both the reasoning espoused in my dissenting opinion and precedent since that decision, that Whitener was erroneously decided and should be overruled.
In holding that challenges such as the one in this case must be raised at trial to be preserved, the Whitener majority relied on Nelson v. State, 84 Ark. App. 373 , 141 S.W.3d 900 (2004). There, the appellant argued that his revocation should have been reversed for the State’s failure to present proof that he received the written list of probation conditions. The appellant acknowledged that he was bringing this argument for the first time on appeal but argued that he was challenging the sufficiency of the evidence to revoke the probation, which was open for review. This court disagreed, stating that the requirement to give the probationer a written list of the probation conditions was a procedural issue and was waived by the appellant’s failure to raise it to the trial court. Nelson, however, is distinguishable from both Whitener and the instant case. Appellant is arguing that the trial court did not know what the probation conditions were and, thus, it could not know whether appellant’s actions violated those conditions. This is different from a claim that she did not know what the terms and conditions of her probation were.
Rather than compounding the error in Whitener, we should hold that the failure of the State to prove an actual term or condition of a probationary or suspended sentence is fatal to its case. In Harris v. State, 98 Ark. App. 264 , 254 S.W.3d 789 (2007), the trial court found that the appellant violated the terms and conditions of his probation when he failed to demonstrate good conduct. This court first rejected the State’s argument that the appellant waived his challenge by failing to ask which criminal offense the court found that he committed. We then rejected the State’s argument that the trial court could have revoked the appellant’s probation by finding that he committed disorderly conduct, stating that the circuit court may not revoke a probation on a basis not alleged in the State’s petition (citing Hill v. State, 65 Ark. App. 131 , 985 S.W.2d 342 (1999)). We ultimately reversed the revocation, stating that the terms and conditions of appellant’s probation did not contain a good-behavior requirement:
While we recognize that the State need only prove that appellant violated one condition of his probation in order to support revocation, and that evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence, a trial court must find that appellant violated a written condition of his suspension.
Harris, 98 Ark. App. at 270 , 254 S.W.3d at 793-94 (citations omitted, emphasis in original).
Harris is in line with Ross v. State, 268 Ark. 189 , 594 S.W.2d 852 (1980), a case I relied upon in my Whitener dissent. There, the trial court revoked the appellant’s probation after finding that he committed the crimes of battery and aggravated assault. The supreme court reversed because the appellant’s probation was not conditioned upon good behavior, despite a provision in the Arkansas Code requiring that probations be conditioned upon good behavior. The court stated:
[C]ourts have no power to imply and subsequently revoke conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence. This result not only comports with any due process requirements owed to a defendant upon the imposition of a suspended sentence but may serve to deter criminal conduct which a defendant might otherwise commit but for a full appreciation of the extent of his jeopardy.
Id. at 191 , 594 S.W.2d at 853 .
In a criminal prosecution, due process requires the State to prove every element of the crime charged beyond a reasonable doubt. See, e.g., Anderson v. State, 353 Ark. 384 , 108 S.W.3d 592 (2003) (citing Mullaney v. Wilbur, 421 U.S. 684 (1975)). Similarly, the State must prove every element of a probation violation by the preponderance of the evidence. See, e.g., Harris, supra. Under Ross and Harris, a court can only base a revocation on a violation of an actual term or condition of a probation or suspended sentence. It necessarily follows that the proof of a violation includes evidence of the actual terms and conditions of the probation or suspended sentence. Without such proof, the State’s evidence is insufficient to support the revocation. Because no motion is necessary to preserve a sufficiency challenge in a revocation proceeding, see, e.g., Harris, supra, the failure to object on this ground at trial should not constitute waiver of the issue on appeal.
I hold to my belief that Whitener was incorrectly decided. This court cannot allow revocation proceedings to become routine to the point that basic due process principles are ignored. In all cases, due process requires the State to maintain its burden of proving all of the elements of a crime or of a probation violation, and we are duty bound by justice to reverse when failure to do so happens. This is such a case. Therefore, I respectfully dissent from the result reached by the majority.