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Webb v. State

Court of Appeals of Arkansas, Division I

April 22, 2015

MICHAEL WEBB, JR., APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE DREW COUNTY CIRCUIT COURT. NO. CR-2010- 162-3A. HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE.

Timothy R. Leonard, for appellant.

Dustin McDaniel, Att'y Gen., by: Nicana C. Sherman, Ass't Att'y Gen., for appellee.

RITA W. GRUBER, Judge. GLADWIN, C.J., and GLOVER, HIXSON, and BROWN, JJ., agree. ABRAMSON, VIRDEN, KINARD, and HOOFMAN, JJ., dissent.

OPINION

Page 821

RITA W. GRUBER, Judge

Michael Webb has complied with our order to supplement the record before us, see Webb v. State, 2014 Ark.App. 637, and we now address the merits of his appeal. On November 15, 2010, the circuit court sentenced Webb to three years' probation on his negotiated plea of guilty to possession of marijuana with intent to deliver and possession of drug paraphernalia--Class C felonies. In a sentencing order entered on December 2, 2013, his probation was revoked and he was sentenced to concurrent terms of six years' imprisonment on each count. Webb appeals the revocation, raising two points. He contends (1) that the court's finding that he violated terms of his probation was clearly against the preponderance of the

Page 822

evidence and (2) that his due-process rights were violated because the court considered matters not contained in the State's petition to revoke.[1] We affirm.

Webb's probation was subject to written conditions, and the circuit court provided him the opportunity to have his record expunged if he successfully completed drug court. On August 8, 2013, the State filed a petition to revoke his probation based on violations of the following conditions: " # 1 Laws, # 5 Weapons, # 6 Controlled Substances, # 14 Fines, # 15: Court costs, # 16 Public Defenders Fee, and # 23 Additional Costs." A violation report that accompanied the petition further specified:

1. Not commit any felony, misdemeanor or other criminal offense punishable by confinement in jail or prison.

On August 6, 2013, Webb was arrested for the offenses of Driving on Suspended License, Theft by Receiving--2 cts, and Possession of Firearm by Certain Persons in Stuttgart, Arkansas.

5. Not purchase, own, possess, or control any deadly weapons [ or] firearms.
According to reports received from the Stuttgart Police Department, on August 6, 2013, Webb was in possession of a Smith & Wesson .38 Revolver Stainless.
6. Not possess, buy, consume, sell or distribute any alcoholic beverages, or controlled substances. Do not enter places where alcoholic beverages or controlled substances are used, sold or permitted. Webb tested positive for THC on 7/29/2011.
14. Pay a fine in the amount of $100.00, payment to be made to the Drew County Sheriff's Office at the rate of $ per month, and pay $5.00 monthly installment fee to the sheriff's office for each month you have a fine balance.
Webb has failed to make any payments to the sheriff's office as directed on this account.
15. Pay $165.00 Court Costs to the Sheriff's Office.
Webb has failed to [make any] payments on this account as directed.
16. Pay $100.00 Public Defender fee to the Sheriff's Office.
Webb has failed to make any payments on this account as directed.
23. Additional Conditions: $250.00 DNA Fee, $20.00 Booking Fee, $125.00 Drug Crime Fee
Webb has failed to make any payments on this account as directed.

The State presented the following testimony at the revocation hearing, conducted on December 2, 2013. Webb's probation officer, Sharon Anderson, testified that she became involved in the case after he was arrested in Stuttgart, Arkansas, for driving on a suspended license, theft by receiving, and possession of a firearm. She testified that although Webb made no payments on his court-ordered obligations and tested positive for THC in July 2011, the Stuttgart " incident" was the only reason the ...


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