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Tomes v. State

Court of Appeals of Arkansas, Division I

May 15, 2019

JONATHAN TOMES APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-13-15] HONORABLE GARY COTTRELL, JUDGE.

          Lisa-Marie Norris, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, CHIEF JUDGE.

         Appellant Jonathan Tomes appeals from an order of the Crawford County Circuit Court revoking his probation.[1] On appeal, appellant argues that the evidence is insufficient to support the revocation because there was no evidence that appellant "absconded" or that doing so violated the terms and conditions of his probationary sentence. We agree; therefore, we reverse and dismiss.

         The State filed an amended information on July 8, 2013, charging appellant with delivery of hydrocodone under Ark. Code Ann. § 5-64-426(c)(1); appellant was also charged as a habitual offender under Ark. Code Ann. § 5-4-501. On January 29, 2014, appellant entered a negotiated plea of guilty to delivery of hydrocodone and was sentenced to sixty months' probation.[2] The sentencing order was entered February 21, 2014.

         On March 27, 2018, the State filed a petition to revoke/show cause, which provided in pertinent part:

That on the 29th day of January, 2014, the Defendant appeared in Open Court with his attorney, Joshua Bugeja, and entered a plea of guilty to the offense of Delivery of Hydrocodone (5-64-426) Class "C" Felony. The Court placed the Defendant under the supervision of the Adult Probation Office for a period of five (5) years and was ordered to abide by the rules and regulations set out by that office including paying a $35.00 monthly probation fee beginning February 1, 2014. The Defendant was ordered to pay $1, 500.00 Drug Court Treatment fee, $1500.00 in restitution, $150.00 court costs, $250.00 DNA fee, $125.00 DFT fee, $100.00 Public Defender fee, $20.00 booking fee and monthly administrative fees payable at the rate of $55.00 per month beginning March 1, 2014 to be paid to the Crawford County Prosecuting Attorney's Office.

         That Arkansas Code Annotated 16-93-311[3] states:

(f)"…if the Court has suspended the imposition of sentence or placed a defendant on probation conditioned upon him making restitution or reparation and the defendant has not satisfactorily made all his payments when the probationary period has ended the Court shall have the authority to continue to assert its jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant's suspended sentence."
That as of this 27th day of March, 2018, the Defendant has failed to comply with the rules and regulations of his probation by absconding; that said conduct is in violation of the terms and conditions of his probation.

         At the revocation hearing on June 6, 2018, Taylor Pippin, a parole-probation officer, testified that he was overseeing appellant's probation for another officer who left, but the case had not "technically" been assigned to him. There had been five officers previously assigned. Pippin did not generate any of the alleged violations and had only been asked to testify the week of the hearing. Pippin said that appellant was turned in for absconding in March 2018; appellant's whereabouts were listed as unknown.

         At this point in Pippin's testimony, appellant's counsel objected, stating that the State filed its petition to revoke on the ground that appellant absconded, which is a term of law memorialized in Ark. Code Ann. § 5-54-131. The State interrupted, explaining that "'[a]bsconding' is a term for probation and parole, not a statutory term, a violation of the term and condition of probation and parole." The State indicated it was not alleging statutory absconding. At the circuit court's direction, appellant's counsel asked Pippin the meaning of "absconding." Pippin testified that "[i]t means you leave a residence that we approved you to stay at, or you don't report as directed or a combination of both or leave your assigned county." The court overruled appellant's objection.

         Pippin testified that there were three violations contained in appellant's probation record: (1) failure to report within twenty-four hours after his release from incarceration in July 2016; (2) failure to report in May 2017; and (3) an attempted home visit on January 26, 2018, which revealed that appellant no longer lived at the address according to the property manager. Pippin stated that ...


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