Hood v. State

2014 Ark. App. 463

• Court: Court of Appeals of Arkansas
• Decided: September 17, 2014
• Docket: CR-13-1099
• Status: Published

Opinion

Cite as 2014 Ark. App. 463

ARKANSAS COURT OF APPEALS DIVISION II No. CR-13-1099

Opinion Delivered September 17, 2014 TERRELL WAYNE HOOD APPELLANT APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. CR-2012-511] V. HONORABLE MICHAEL A. MAGGIO, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

JOHN MAUZY PITTMAN, Judge

This is an appeal from a probation revocation. Appellant pled guilty on April 4, 2013,

to charges of possession of a controlled substance, possession of drug paraphernalia, and

driving with a suspended license. He was placed on probation for a period of five years,

conditioned, inter alia, on meeting with the probation office in a regular and timely manner.

A petition to revoke was filed after appellant failed to appear at his initial probation intake.

After a hearing, the trial court found that appellant violated the terms of his probation and

sentenced him to six years’ imprisonment. On appeal, appellant argues that the trial court

employed the wrong standard in determining his punishment and that the revocation hearing

was untimely. We affirm.

Appellant argues for the first time on appeal that the trial court employed the wrong

standard by failing to exercise its discretion in deciding whether or not to revoke. We cannot

address this issue because appellant failed to object to the sentence imposed at the revocation Cite as 2014 Ark. App. 463

hearing; the issue is therefore not preserved for appellate review. Mixon v. State, 330 Ark.

171, 954 S.W.2d 214 (1997).

Appellant next argues that the probation hearing was untimely because he was initially

incarcerated on revocation charges and remained incarcerated for over sixty days. Arkansas

Code Annotated section 16-93-307(b)(2) (Supp. 2013) provides that a revocation hearing

must be held within sixty days of an arrest for a probation violation. However, this is not in

the nature of a speedy-trial provision, Miller v. State, 2011 Ark. App. 554, 386 S.W.3d 65, and

is mandatory only when one is arrested for the violation of the conditions of his probation.

Id. Where the accused is incarcerated on other charges, the limitation is inapplicable. Id.

Here, appellant was arrested for a probation violation on May 29, 2013. Less than two weeks

later, on June 10, the petition to revoke was dismissed based on appellant’s agreement to a

negotiated plea (on which he later reneged). Appellant remained incarcerated on other

charges. Upon determining that appellant had rejected the plea offer, the revocation petition

was refiled on August 15. The revocation hearing was then held promptly on August 28, less

than two weeks after the petition was refiled. Therefore, although appellant may in fact have

been incarcerated from April until August 2013, less than thirty days of the incarceration was

attributable to the revocation charges, and the sixty-day limitation set out in section

16-93-307(b)(2) was not violated.

Affirmed.

WALMSLEY and HIXSON, JJ., agree.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.