APPEAL
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, OSCEOLA DISTRICT
[NOS. 47OCR-15-9 AND 47OCR-15-220] HONORABLE RALPH WILSON,
JR., JUDGE.
Bill
E. Bracey, Jr., for appellant.
Leslie
Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't
Att'y Gen., for appellee.
RAYMOND 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.
On May
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[.]"
On
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 Virgies's
residence, officers found a letter written by Virgies that
was signed "Fabo" and a .38-caliber Smith and
Wesson revolver.
The
State petitioned to revoke Virgies's 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 Virgies's 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 defendant's 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 State's 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.
On
appeal from a revocation, we "will not reverse the trial
court's 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 court's 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.
Virgies's
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.
Arkansas's revocation statute provides that a
"revocation hearing shall be conducted by the court . .
. within a reasonable period of time after the
defendant's 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 (1976); Jones v. State, 2012 Ark.App.
69, 388 S.W.3d 503; Cooper v. State, 2009 Ark.App.
861. 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.
Virgies's second and third appellate points are not
preserved; therefore, we affirm the circuit court's
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 appellant's argument. E.g.,
Williams v. State, 2015 Ark.App. 245, at 10, 459
S.W.3d 814, 820. In the instant case, the circuit court found
that Virgies had violated the terms of his probation by
having a gun in his home. This ground for revocation is
independent of, and does not depend on, the victim's
identification of Virgies. Accordingly, we reject
Virgies's second appellate argument.
Virgies's
sufficiency argument also fails for the same reason. Virgies
does not challenge the circuit court's decision to revoke
his probation for having a gun in his home in violation of
the conditions of probation, and as noted, when a circuit
court bases its decision on multiple, independent grounds and
an appellant challenges only one of those ground on appeal,
we will affirm without addressing the merits of the argument.
See Bedford v. State, 2014 Ark.App. 239. Because
Virgies failed to ...