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Bohannon v. State

Court of Appeals of Arkansas, Division II

September 3, 2014

BRENDA BOHANNON, APPELLANT,
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT. NO. CR-2004-1145-1. HONORABLE ROBERT HOLDEN WYATT, JUDGE.

Cortinez Law Firm, bye: Robert R. Cortinez, Sr., for appellant.

Dustin McDaniel, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

PITTMAN and WHITEAKER, JJ., agree.

OPINION

Page 736

ROBERT J. GLADWIN, Chief Judge.

Appellant Brenda Bohannon appeals the revocation of her probation by the Jefferson County Circuit Court, for which she was sentenced to eight years' imprisonment in the Arkansas Department of Correction (ADC). She argues that the circuit court committed reversible error in revoking her probation without analyzing why she had failed to pay the court-ordered restitution. We affirm.

On or about November 17, 2004, the State filed a criminal information against appellant accusing her of violating the Arkansas Hot Check Law--(in amounts of less than $2500 but more than $200)--regarding multiple checks on Simmons First National Bank payable to various merchants--pursuant to Arkansas Code Annotated sections 5-37-301 to-307 (Repl. 2006). A judgment-and-disposition order was entered on September 20, 2006, listing appellant's plea of guilty and her sentence of 120 hours' community service, assessment of a number of different court costs and a fine, and an order to pay restitution of $5,520.36 at the rate of $113 per month.

On October 5, 2011, the State filed a petition to revoke alleging that appellant had violated the terms of her probation because she had not paid her $1,150 in court fines and was delinquent $4,351.72 in restitution. The recommendation of the probation officer was to extend probation. After various continuances and appointments, on July 16, 2013, the State filed a supplemental petition to revoke alleging that appellant had violated additional terms of her probated sentence, which included to failing maintain or provide proof of gainful employment, making false, misleading, and deceptive claims that she had complied with the terms and conditions of her probation, and failing to complete her court-ordered community-service hours.

At the hearing on the State's petition, the circuit court found that appellant had made payments totaling $1,483.60--which left her owing $5,236.72 of the $6,720.32 originally owed. The circuit court found that she had violated the terms and conditions of her probation by failing to pay and that her failure to make the payments was willful. The circuit court revoked her probation and sentenced her to a term of eight years in the ADC pursuant to a sentencing order filed October 1, 2013. Appellant filed a timely notice of appeal on October 24, 2013.

In order to revoke probation or a suspended imposition of sentence, the circuit

Page 737

court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of the suspension or probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2011). On appellate review, the circuit court's findings will be upheld unless they are clearly against the preponderance of the evidence. Williams v. State, 2013 Ark.App. 592, at 1. Where the alleged violation involves the failure to pay ordered amounts, after the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide a reasonable excuse for the failure to pay. Sanders v. State, 2012 Ark.App. 697, at 2-3. It is the probationer's obligation to justify his failure to pay, and this shifting of the burden of production provides an opportunity to explain the reasons for nonpayment. Id. Despite the shifting of the burden of production, the State shoulders the ultimate burden of proving that the defendant's failure to pay was inexcusable. Scroggins v. State, 2012 Ark.App. 87, at 9, 389 S.W.3d 40, 45.

Appellant argues that the circuit court erred in revoking her probation, submitting that the circuit court should have granted the relief recommended by the probation officer--a continuation of her probation until she could pay the restitution. Appellant claims that the State's case consisted of testimony that indicated that the relevant records were untrustworthy and that no one really knew what had happened over the five years of probation. She maintains that the only reliable proof presented was the ...


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