FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05CR-13-106]
HONORABLE GORDON WEBB, JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
Payne was serving a five-year suspended sentence stemming
from a 2013 guilty plea to breaking or entering (a Class D
felony) and theft of property (a Class A misdemeanor) when a
Boone County jury found him guilty of possession of
methamphetamine and drug paraphernalia. The circuit court
revoked Payne's suspension on the basis of these
convictions and sentenced him to six years' imprisonment
to run concurrent with the terms of imprisonment announced in
case no. 05CR-15-79. Payne now appeals, arguing the
revocation was in error because (1) there was insufficient
evidence to support the convictions and (2) the State had
failed to prove that Payne had received the written
conditions of his suspended sentence. We affirm the sentences
begin, we note that this is a companion case to Payne v.
State, 2017 Ark.App. 264, also handed down today. The
background, facts, and procedural history are set out in
detail in that opinion and do not bear repeating here. In
that appeal, as in this one, Payne first challenges the
sufficiency of the evidence to support his possession
convictions. Because the revocation of Payne's suspended
sentence was based on those possession convictions, it stands
to reason that if there was not enough evidence to support
those convictions, there is not enough evidence to support
standard of review for a challenge to the sufficiency of the
evidence on appeal is different for convictions and
revocations. To support a conviction, we review the evidence
most favorable to the State for substantial evidence.
Perez v. State, 2016 Ark.App. 291, 494 S.W.3d 431.
In revocation proceedings, however, we look to see only if
the trial court's decision to revoke is supported by a
preponderance of the evidence. Stinnett v. State, 63
Ark.App. 72, 973 S.W.2d 826 (1998). Evidence is substantial
if it is of sufficient force and character that it will, with
reasonable certainty, compel a conclusion one way or the
other without resorting to speculation or conjecture.
Perez, supra. On the other hand, a
preponderance of the evidence is evidence which, when weighed
with that opposed to it, has more convincing force and is
more probably true and accurate. Meador v. State, 10
Ark.App. 325, 664 S.W.2d 878 (1984). Thus, evidence that may
not be sufficient to convict can be sufficient to revoke, due
to the State's lower burden of proof. Bradley v.
State, 347 Ark. 518, 521, 65 S.W.3d 874, 876 (2002).
Payne v. State, 2017 Ark.App. 264, we reviewed the
challenge to the sufficiency of the evidence using the higher
standard and held it sufficient to support the convictions.
For the reasons set out in CV-16-948, we affirm the circuit
court's order on Payne's first point.
next argues that, because there was no proof introduced at
the revocation hearing that he had ever been supplied with
written conditions of his suspended sentence, the court had
no authority to revoke his suspension. He cites Ross v.
State, where our supreme court reversed a revocation of
a suspended sentence when there was no evidence introduced at
the revocation hearing that the appellant, who had committed
a crime, had violated a written condition of his suspended
sentence. 268 Ark. 189, 594 S.W.2d 852 (1980). We are unable
to reach this point, however, because Payne did not preserve
it for our review. The State correctly notes that this
argument was not presented to the trial court, and we are
consequently unable to consider it for the first time on
appeal. See, e.g., Whitener v. State, 96
Ark.App. 354, 241 S.W.3d 779 (2006).
we note that, while it was not argued to this court, the
circuit court's April 12, 2016 order is illegal on its
face regarding the misdemeanor. The issue of an illegal
sentence is an issue of subject-matter jurisdiction that this
court may raise sua sponte, even if not raised on appeal and
not objected to in the circuit court. Harness v.
State, 352 Ark. 335, 101 S.W.3d 235 (2003); Wright
v. State, 92 Ark.App. 369, 214 S.W.3d 280 (2005).
Code Annotated section 16-93-308(d) provides that
[i]f a court finds by a preponderance of the evidence that
the defendant has inexcusably failed to comply with a
condition of his or her suspension or probation, the court
may revoke the suspension or probation at any time prior to
the expiration of the period of suspension or probation.
October 2013 sentencing order provided that he serve 60
months' suspended imposition of sentence for the felony
charge and 12 months' suspended imposition of sentence
for the misdemeanor. The sentences were to run concurrently;
thus, the twelvemonth sentence for the misdemeanor was
completed before the State even filed its first petition to
revoke Payne's suspended sentence in December 2014.
Consequently, the revocation of probation for the misdemeanor
resulted in an illegal sentence.
judgment is modified to delete the revocation and sentence