# Cole v. State

> Court of Appeals of Arkansas · April 9, 2014 · 433 S.W.3d 924

URL: https://www.frixlaw.com/law-library/cases/9799301

## Case

- **Full name:** Stephen Brian COLE, Appellant v. STATE of Arkansas, Appellee
- **Court:** Court of Appeals of Arkansas
- **Decided:** April 9, 2014
- **Citations:** 433 S.W.3d 924; 2014 Ark. App. 215; 2014 Ark. App. LEXIS 277; 2014 WL 1387237
- **Precedential status:** Published
- **Opinion:** Dissent by Hixson
- **Judges:** Robert J. Gladwin
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9799301

## Opinion text

KENNETH S. HIXSON, Judge, dissenting.
As pointed out in Judge Vaught’s dissenting opinion, the majority goes to great lengths to include what I believe are irrelevant minutia concerning the defendant to justify affirming the revocation. The issue in this appeal should not include a debate on the unhappy and disappointing background of the defendant or whether his mother was overly protective; rather, this appeal should be focused on whether | iSthe defendant inexcusably violated a term of his probation. Assuming everything the majority writes is true, the imposition of a ten-year prison sentence because the defendant failed to obtain a written permission slip prior to receiving bona fide medical treatment out-of-state is a gross injustice, and in my view unacceptable.
The testimony of the probation officer was unequivocal that, when the defendant went to California at his mother’s prompting to attend an in-house rehabilitation center, the defendant was fully compliant with all the terms of his probation. Because the defendant attended the two-week in-house rehabilitation center in California before obtaining permission, the trial court believed he had a “change of residence.” Based on this “change of residence,” the trial court determined that he had violated his probation, and it changed a five-year probation sentence to a ten-year term of imprisonment. At worst, the trial court and our court should have determined that, even assuming there had been a violation, it was excusable. Accordingly, I am left with a firm conclusion that a mistake has been made. Because the trial court’s finding that appellant inexcusably violated his probation was clearly against the preponderance of the evidence.
HARRISON and VAUGHT, JJ., join.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9799301. Public record. Not legal advice.