{ "id": 6137114, "name": "Ricky Darnell WILKERSON v. STATE of Arkansas", "name_abbreviation": "Wilkerson v. State", "decision_date": "1996-03-27", "docket_number": "CA CR 95-89", "first_page": "52", "last_page": "58", "citations": [ { "type": "official", "cite": "53 Ark. App. 52" }, { "type": "parallel", "cite": "920 S.W.2d 15" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "274 Ark. 81", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1755033 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/274/0081-01" ] }, { "cite": "288 Ark. 52", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717283 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/288/0052-01" ] }, { "cite": "281 Ark. 282", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742370 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark/281/0282-01" ] }, { "cite": "16 Ark. App. 34", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6650347 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ark-app/16/0034-01" ] }, { "cite": "276 Ark. 441", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751501 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark/276/0441-01" ] }, { "cite": "389 U.S. 128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11335632 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/389/0128-01" ] }, { "cite": "285 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1877736 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "holding that under Mempa v. Rhay, 389 U.S. 128 (1967), counsel is required at every stage of a criminal proceeding where substantial rights of a defendant may be affected" }, { "parenthetical": "holding that under Mempa v. Rhay, 389 U.S. 128 (1967), counsel is required at every stage of a criminal proceeding where substantial rights of a defendant may be affected" } ], "opinion_index": 0, "case_paths": [ "/ark/285/0045-01" ] }, { "cite": "264 Ark. 454", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668823 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0454-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-310", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "(b)(2)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "292 Ark. 237", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1871470 ], "weight": 7, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/292/0237-01" ] } ], "analysis": { "cardinality": 611, "char_count": 13688, "ocr_confidence": 0.795, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.41331618175422585 }, "sha256": "55dc3d9e1edf2318da40681be1ed946ae7f6bba59b5c9da3052e2578659c2f01", "simhash": "1:6fac690f61a57d84", "word_count": 2368 }, "last_updated": "2023-07-14T22:00:24.662479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Jennings, C.J., and Robbins and Rogers, JJ., agree.", "Cooper and Mayfield, JJ., dissent." ], "parties": [ "Ricky Darnell WILKERSON v. STATE of Arkansas" ], "opinions": [ { "text": "John Mauzy Pittman, Judge.\nThe appellant, Picky Darnell Wilkerson, pleaded guilty on January 18, 1993, to burglary and theft of property and was placed on probation for a period of three years. In February 1994, the prosecuting attorney filed a petition alleging that appellant had violated several conditions of his probation. After a hearing, the trial court found that appellant had violated certain terms of probation, revoked his probation, and sentenced him to five years\u2019 imprisonment in the Arkansas Department of Correction, with four years suspended on each charge. Appellant argues that the revocation petition should have been dismissed for failure to have a timely hearing. We affirm.\nArkansas Code Annotated \u00a7 5-4-310(b)(2) (Repl. 1993) provides that a revocation hearing shall be conducted within a reasonable period of time, not to exceed sixty (60) days after the defendant\u2019s arrest. The record indicates that appellant was arrested for violation of probation on March 2, 1994. On May 2, 1994, a hearing on the revocation petition was continued to May 27, 1994, at the State\u2019s request and without objection from appellant, to permit appellant to assemble his witnesses. At the May 27, 1994, revocation hearing, after all the testimony was presented, appellant moved to dismiss the petition on the basis of \u00a7 5-4-310 (b)(2) for lack of a speedy hearing. The court found that appellant waived his objection by failing to move for dismissal prior to the hearing and revoked his probation.\nWe agree with the trial court\u2019s ruling. The State has a right to be notified prior to the hearing that a defendant will raise a speedy-hearing objection, and appellant waived his objection by failing to move for dismissal of the petition prior to the hearing. Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987). In Summers, supra, the Arkansas Supreme Court applied to a revocation proceeding Arkansas Rule of Criminal Procedure 28.1(f), which states that a defendant\u2019s failure to move for dismissal of a charge for lack of a speedy trial prior to trial results in a waiver.\nAppellant\u2019s counsel argues that he moved for dismissal as soon as he became aware that appellant\u2019s March 2 arrest was for the probation violation, rather than on the underlying felony charges. However, counsel had access to this information prior to the hearing, and has not demonstrated a good reason why the motion was not filed before the hearing. Id. We find no error and affirm the revocation of appellant\u2019s probation.\nJennings, C.J., and Robbins and Rogers, JJ., agree.\nCooper and Mayfield, JJ., dissent.\nMelvin Mayfield, Judge.\nI cannot agree with the majority opinion in this case. The opinion recognizes that Ark. Code Ann. \u00a7 5-4-310(b)(2) (Repl. 1993) provides that a revocation hearing shall be conducted within a reasonable period of time, not to exceed sixty (60) days, after the defendant\u2019s arrest, but by reliance upon Summers v. State, 292 Ark. 237, 729 S.W.2d 147 (1987), the majority holds that the appellant failed to move for dismissal prior to trial and that this resulted in a waiver of the sixty-day hearing requirement.\nThe first problem I have with the majority\u2019s thesis is that our examination of the issue involved should start with the appellant\u2019s first appearance before the court after his arrest for violation of probation. This appearance was pursuant to an order setting a preliminary revocation hearing. The order shows it was signed by the judge on March 2, 1994, and the hearing was set for March 29, 1994.\nAt that hearing, as shown by the record and appellant\u2019s abstract, the appellant was brought before the judge and the following proceedings, relevant to the issue now on appeal, occurred:\nCourt: All right, Mr. Wilkerson, one thing seems clear, you don\u2019t have any ability to hire a lawyer, do you?\nDefendant: No, sir.\nCourt: The Court\u2019s going to appoint the public defender\u2019s office to represent you, sir, in your revocation hearing set for May the 2nd.\nDefendant: Now, what \u2014 That will be \u2014 A revocation is like to tell me if I\u2019m violated.\nCourt: Yes, sir.\nDefendant: Shouldn\u2019t we go to trial first? I mean, I\u2019m not trying to be smart, but \u2014\nCourt: That\u2019s up to the State. They may not be ready for you then. They may come back and file charges \u2014\nDefendant: But I\u2019m sitting down there. I have no bail because it makes it look like, on paper, it makes it look like I\u2019m A1 Capone. And I\u2019m sitting down here in this jail house for what? They could hold me nine months, ten months,\nCourt: No, sir. They won\u2019t hold you that long or they\u2019re going to have to file on you.\nDefendant: So the charges aren\u2019t filed yet?\nCourt: The new felony charges that Mr. Wray has referred to apparently are not yet filed, at least I don\u2019t know about them. The revocation petition has been filed and may well be amended before May 2nd. See, we don\u2019t have to try the new charges before we have a revocation hearing on probation.\nAt this point we need to look at the dates involved. It appears from an exchange between the court and appellant at the beginning of the preliminary hearing that the appellant had been in jail in Hamburg, Arkansas, since March 2, 1994. However, at the revocation hearing it was stipulated \u2014 and this is clearly abstracted in appellant\u2019s brief \u2014 that the appellant was arrested on March 1, 1994, at 9:40 p.m. The stipulation also agreed that appellant was arrested for probation violation only \u2014 pursuant to a telephone call by Debbie Hancock, probation officer.\nThis information is important because it shows that whether the arrest occurred on March 1 or March 2, sixty days from those dates would be either April 30, 1994, or May 1, 1994. Of course, the revocation hearing set for May 2, 1994, was set more than sixty days after appellant\u2019s arrest regardless of whether the arrest was made on March 1 or March 2. However, April 30, 1994, fell on a Saturday and May 1, 1994, fell on a Sunday. Under Rule of Criminal Procedure 1.4 when the last day of the time period to do an act provided by a statute governing criminal procedure falls on a Saturday or Sunday the period shall run until the end of the next day which is neither a Saturday or Sunday, nor a legal holiday. Therefore, the revocation hearing held on May 2, 1994, was within sixty days after appellant\u2019s arrest.\nHowever, I do not believe that the time computation provisions of Ark. R. Crim. P. Rule 1.4 answers the question presented in this case. The simple fact is that the last day to hold the revocation was May 2, 1994, and the hearing was not held on that date. Instead, on the State\u2019s motion, the hearing was continued until May 27, 1994, and appellant\u2019s attorney did not object to the continuance. If there was a waiver of the sixty-day time limit for holding the hearing, it had to occur when the hearing was continued on May 2; therefore, the case of Summers v. State, supra, does not really apply to this case. That case held that a waiver of the time limit occurred because the State was not put on notice that the sixty-day statutory period would be invoked. The court said that this lack of notice prevented the State from having the opportunity to present evidence regarding whether there was a delay in returning Summers to Arkansas which would prevent the running of the time period. No such problem is involved in this case.\nActually, the case of Haskins v. State, 264 Ark. 454, 572 S.W.2d 411 (1978), relied upon by the State, is really more in point here. In Haskins there was no objection at all in the trial court to the fact that the revocation hearing was held more than sixty days after the arrest of Haskins. Here, of course, there was an objection \u2014 and motion to dismiss \u2014 but after the sixty-day period had run. The State in its brief recognizes that neither Summers nor Haskins really controls the present case, and its brief states, \u201cThese precise facts seem to constitute a case of first impression.\u201d\nWhen we start with the appellant\u2019s first appearance before the court \u2014 the preliminary hearing provided by Ark. Code Ann. \u00a7 5-4-310(a) (Repl. 1993) to determine whether there is reasonable cause for further revocation proceedings \u2014 we see that the revocation hearing was set for the sixtieth day thereafter, as computed by Ark. Rule. Crim. 1.4. Thus, under the \u201cprecise facts\u201d in this case, the crucial point, as to waiver of the time limit for holding the revocation hearing, was May 2, 1994, at which time the hearing was continued and reset for May 27, 1994, and it is a mistake to rely on Summers v. State and hold that the failure to make the motion until after the hearing started on that day constituted a waiver of the sixty-day time limit. The reasoning in Summers does not apply here because the sixty-day period had already expired by May 27, 1994.\nTherefore, I think we must look to May 2, 1994, for our answer under the precise facts in this case. Now it is clear that a defendant has a constitutional right to counsel at a revocation hearing. See Furr v. State, 285 Ark. 45, 685 S.W.2d 149 (1985) (holding that under Mempa v. Rhay, 389 U.S. 128 (1967), counsel is required at every stage of a criminal proceeding where substantial rights of a defendant may be affected). The record and appellant\u2019s abstract show that on May 2, 1994, the hearing began by the court announcing that \u201cRicky Wilkerson is in jail.\u201d The State then informs the court that the State is anticipating filing an amended petition for revocation and asked for a continuance. The court then called for \u201cresponse from the defense,\u201d and appellant\u2019s appointed attorney said, \u201cI\u2019ve got no objection to that, Your Honor.\u201d The court then said, \u201cAll right, Reset May 27.\u201d\nNow the second problem I have with the majority\u2019s decision in this case results from the fact that the appellant at the preliminary hearing was clearly unhappy with the fact that he was going to have to sit in jail until his revocation hearing sixty days later, and both the court and appellant\u2019s counsel, appointed and present at the preliminary hearing, knew that. However, on May 2, 1994, while the appellant was in jail and not in court, the judge granted (and appellant\u2019s counsel said he had no objection) a continuance and resetting which extended the sixty-day period in which to have the revocation hearing by a period of twenty-five days. One of two things seems clear to me: either counsel had a good reason for not objecting to the continuance, or he failed to provide effective assistance to appellant.\nBoth this court and our supreme court have looked to the rules providing for speedy trial of criminal charges for guidance in cases involving the application of the statutory sixty-day period for revocation hearings. See Lark v. State, 276 Ark. 441, 637 S.W.2d 529 (1982); Cheshire v. State, 16 Ark. App. 34, 696 S.W.2d 322 (1985). And in this regard, in the case of Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984), an appeal from the trial court\u2019s refusal to grant post-conviction relief, the Arkansas Supreme Court held that the failure of appellant\u2019s counsel to move for dismissal at the time the prosecution was barred by the speedy-trial rule constituted ineffective assistance of counsel. Even though the defendant had waived his right to a speedy trial and entered a plea of guilty, our supreme court said, \u201ccounsel at the time of the plea offered no testimony of trial strategy or other reason for the failure to assert the right to a speedy trial, and the appellant did not knowingly and intelligently waive his right to a speedy trial.\u201d And based on the same reasoning, in Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986), the Arkansas Supreme Court granted post-conviction relief where the speedy-trial time had expired and concluded as follows:\nWe thus hold the failure to make the dismissal motion was ineffective assistance of counsel, the defendant suffered prejudice from it, and we have no alternative but to reverse the conviction and dismiss the case.\nSee also Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981).\nIt is, of course, true that this case is not a Rule 37 post-conviction case. But under the precise facts in this case, I would hold that the appellant did not waive the sixty-day period for his revocation hearing. It is clear that he was not consulted about the matter when the State asked for a continuance on May 2, 1994. Since that was the last day of the sixty-day period and the State asked for the continuance, I would hold that because the record shows nothing from which we can find that the appellant actually knew that his attorney waived the right to have the hearing within the sixty-day period, his counsel\u2019s waiver was not sufficient.\nAs the majority opinion states, appellant\u2019s counsel argued to the trial court, after the motion to dismiss was finally made, that under the confusing circumstances present in this case, he made the motion to dismiss as soon as he became aware that appellant\u2019s arrest was for probation revocation. I do not fault the trial court\u2019s finding that this was not a good excuse. But I do think that the trial court should have granted the motion to dismiss because on the facts in this case the appellant did not waive the right to have his revocation hearing within sixty days of his arrest.\nI would reverse and dismiss the petition for revocation.\nCOOPER, J., joins in this dissent.", "type": "majority", "author": "John Mauzy Pittman, Judge. Melvin Mayfield, Judge." } ], "attorneys": [ "Robert P. Remet, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Ricky Darnell WILKERSON v. STATE of Arkansas\nCA CR 95-89\n920 S.W.2d 15\nCourt of Appeals of Arkansas En Banc\nOpinion delivered March 27, 1996\n[Petition for rehearing denied June 26, 1996.]\nRobert P. Remet, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Brad Newman, Asst. Att\u2019y Gen., for appellee.\nCooper and Mayfield, JJ., would grant." }, "file_name": "0052-01", "first_page_order": 76, "last_page_order": 82 }