FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, OSCEOLA DISTRICT
[NOS. 47OCR-15-9 AND 47OCR-15-220], HONORABLE RALPH WILSON,
Bracey, Jr., Blytheville, for appellant.
Rutledge, Atty Gen., by: Joseph Karl Luebke, Asst Atty
Gen., for appellee.
R. ABRAMSON, Judge
Appellant Faishaun Virgies appeals from an order of the
Mississippi County Circuit Court revoking his probation in
two separate cases and sentencing him to a total of thirty
years imprisonment. On appeal, Virgies argues three points:
(1) that the State failed to hold a revocation hearing within
sixty days; (2) that the photo lineup given to the victim was
"unduly suggestive and conducive to irreparable mistaken
identification"; and (3) that there was insufficient
evidence supporting the July 31, 2018 revocations. We affirm.
23, 2016, Virgies pled guilty to two counts of robbery in
separate cases and was sentenced to concurrent terms of 120
months probation (case nos.: CR15-9 and CR15-220). As
conditions of his terms of probation, Virgies was ordered
"not [to] commit any criminal offense punishable by
imprisonment" and "not [to] purchase, own, control,
or possess any firearm[.]"
January 12, 2018, Kuron Lapore Hurt was robbed at gunpoint by
two assailants, including one who was referred to as
"Fabo." Hurt positively identified "Fabo"
as appellant Virgies. At a probation search of Virgiess
residence, officers found a letter written by Virgies that
was signed "Fabo" and a .38-caliber Smith and
State petitioned to revoke Virgiess probation and also
brought new felony charges against him. The circuit court
held a revocation hearing on July 31, 2018, and based on the
evidence presented, found that Virgies had violated the
conditions of his probation. The circuit court revoked both
of Virgiess terms of probation and sentenced him to serve
240 months in prison (case no.: CR15-9) and 120 months in
prison (case no.: CR15-220) to run consecutively, for a total
sentence of 360 months imprisonment. This timely appeal of
both revocations is now properly before this court.
Pursuant to Arkansas Code Annotated section 16-93-308(d)
(Repl. 2017), a circuit court may revoke a defendants
probation at any time prior to the expiration of the period
of probation if it finds by a preponderance of the evidence
that the defendant has inexcusably failed to comply with a
condition of the probation. Springs v. State, 2017
Ark.App. 364, at 3, 525 S.W.3d 490, 492. "Thus, to
sustain a revocation, the State need show only that the
defendant committed one violation." Id. The
States burden of proof in a revocation proceeding is less
than is required to convict in a criminal trial, and evidence
that is insufficient for a conviction thus may be sufficient
for a revocation. Id.
appeal from a revocation, we "will not reverse the trial
courts decision to revoke unless it is clearly erroneous, or
clearly against the preponderance of the evidence."
Brown v. State, 2016 Ark.App. 403');">2016 Ark.App. 403, at 4, 500 S.W.3d
781, 784 (citing Ferguson v. State, 2016 Ark.App. 4,
at 3, 479 S.W.3d 588, 590). Moreover, we defer to the circuit
courts superior position in evaluating the credibility and
weight to be given testimony. Peals v. State, 2015
Ark.App. 1, at 4, 453 S.W.3d 151, 154.
first argument on appeal is that the revocation hearing was
not held within sixty days of his arrest. The State responds
that Virgies waived his right to demand that the hearing be
held within sixty days because he did not object to the delay
until the July 31 revocation hearing. We agree. Arkansass
revocation statute provides that a "revocation hearing
shall be conducted by the court ... within a reasonable
period of time after the defendants arrest, not to exceed
sixty (60) days." Ark. Code Ann. § 16-93-307(b)(2)
(Repl. 2016). We have held that the sixty-day limitation
pertaining to revocation hearings is not jurisdictional;
rather, it represents the period beyond which the hearing
cannot be delayed if the defendant objects. Haskins v.
State, 264 Ark. 454, 572 S.W.2d 411 (1978); Jones v.
State, 2012 Ark.App. 69, 388 S.W.3d 503; Cooper v.
State, 2009 Ark.App. 861, 2009 WL 4844797. Thus, when
the defendant does not object to the timeliness of the
hearing prior to the expiration of the sixty-day period, he
or she waives the right to insist on a timely hearing.
Cooper, supra . Because Virgies did not
object to the hearing until well after the sixty-day period
had expired, he has waived any objection to the timeliness of
the revocation hearing.
Virgiess second and third appellate points are not
preserved; therefore, we affirm the circuit courts
revocations without addressing the merits of his arguments.
When a circuit court bases its decision to revoke probation
on multiple independent grounds and the appellant fails to
challenge each ground, we can affirm without addressing the
merits of appellants argument. E.g., Williams
v. State,2015 Ark.App. 245, at 10, 459 S.W.3d 814, 820.
In the instant case, the circuit ...