FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-13-356]
HONORABLE ALEX GUYNN, JUDGE
Hancock Law Firm, by: Sharon Kiel, for appellant.
Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, Judge
Boyd appeals the Jefferson County Circuit Court order
revoking his probation. On appeal, Boyd argues that the
circuit court erred by denying his motion to dismiss the
petition and allowing testimony that violated his rights
under the Confrontation Clause. We reverse and dismiss.
October 11, 2016, Boyd pled guilty to unlawful dogfighting.
He was sentenced to thirty-six months' probation. On May
3, 2018, the State filed a petition to revoke Boyd's
probation, and on September 11, the court held a revocation
hearing. At the hearing, Collin Frierson, Boyd's
probation officer, testified that Boyd had violated his
probation on January 21, 2017, when he committed the offense
of driving while intoxicated (DWI) in Desha County. Boyd
objected to Frierson's testimony and argued that Frierson
could not testify about the DWI because he did not arrest
Boyd and had no knowledge of the arrest. The court overruled
State then moved to introduce the Dumas District Court docket
sheet to prove Boyd's DWI conviction. Boyd objected and
argued that pursuant to King v. State, 2018 Ark.App.
278, 549 S.W.3d 407, the State could not rely on an
uncounseled misdemeanor to revoke probation. The State
requested time to research the case, and the court responded
that it would delay ruling on the issue but that the case
would not "change [its] opinion on which way . . . to
rule." The court did not admit the docket sheet into
then moved to dismiss the petition. He asserted that the
State offered no proof that he committed a DWI offense and
thus violated a condition of his probation. The court denied
the motion and revoked Boyd's probation. He was sentenced
to thirty-six months' probation. This appeal followed.
order to revoke a probation, the circuit court must find by a
preponderance of the evidence that the defendant has
inexcusably violated a condition of the probation or
suspension. Ark. Code Ann. § 16-93-308(d) (Supp. 2017).
Thus, to sustain a revocation, the State need only show that
the defendant committed one violation. Prackett v.
State, 2014 Ark.App. 394. Evidence that may not be
sufficient to convict can be sufficient to revoke due to the
lower burden of proof required for revocation. Newborn v.
State, 91 Ark.App. 318, 210 S.W.3d 153 (2005). A circuit
court's finding in revocation proceedings will not be
reversed on appeal unless it is clearly against the
preponderance of the evidence. Id. Because the
preponderance of the evidence turns on questions of
credibility and weight to be given testimony, we defer to the
superior position of the circuit court to decide these
matters. Mosley v. State, 2016 Ark.App. 353, 499
appeal, Boyd first argues that the circuit court erred by
denying the motion to dismiss the petition because the State
presented no proof that he committed the DWI offense. He
acknowledges that Frierson testified that he had a DWI
conviction from the Dumas District Court, but he points out
that Frierson had no direct knowledge of his arrest or the
facts surrounding it. He further relies on King,
2018 Ark.App. 278, 549 S.W.3d 407, and asserts that an
uncounseled municipal court conviction cannot be used to
King, this court reversed a circuit court's
revocation of a defendant's probation that was based
solely on a misdemeanor conviction. Id. The record
was silent on whether counsel represented the defendant when
she pled guilty in district court, and the State presented no
evidence of the facts giving rise to the conviction.
Id. Specifically, we relied on our supreme
court's decision in Alexander v. State, 258 Ark.
633, 527 S.W.2d 927 (1975):
[A]n uncounseled municipal court conviction cannot be used
for the purpose of revoking a suspended sentence as the net
effect thereof is "the actual deprivation of a
person's liberty" without "the guiding hand of
counsel." Of course, this does not mean that the
responsible officials cannot show that the facts giving rise
to the municipal court conviction are sufficient themselves
to revoke the suspended sentence.
King, 2018 Ark.App. 278, at 4, 549 S.W.3d at 409
(quoting Alexander, 258 Ark. at 637, 527 S.W.2d at
case, we agree with Boyd that the evidence is insufficient to
show that he committed a DWI offense and thus violated his
probation. Here, the record is devoid of any evidence of
Boyd's DWI. The docket sheet was never admitted into
evidence. The State asserts that the probation officer's
testimony is sufficient to support the revocation. We
disagree. The officer had no knowledge of the facts giving
rise to the district court conviction; he merely testified
that Boyd had been convicted. Accordingly, we hold that the
circuit court erred by denying Boyd's motion to dismiss
the State's petition to revoke ...