{
  "id": 1897031,
  "name": "Sherman AVERY v. STATE of Arkansas",
  "name_abbreviation": "Avery v. State",
  "decision_date": "1993-01-11",
  "docket_number": "92-760",
  "first_page": "391",
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      "year": 1991,
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  "provenance": {
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    "judges": [],
    "parties": [
      "Sherman AVERY v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Robert H. Dudley, Justice.\nAppellant, a juvenile, was adjudged a delinquent and placed on probation. Subsequently, the trial court revoked appellant\u2019s probation and imposed a fine as punishment. We reverse the revocation of probation and imposition of a fine for failure to comply with the juvenile code, and remand for further proceedings.\nAppellant, a fifteen-year-old, was charged in April 1990 in the Juvenile Division of Chancery Court with burglary and reckless burning. An attorney was appointed and appellant was ordered to appear for an \u201cadjudication (D)\u201d on November 13, 1990. \u201cAdjudication (D)\u201d may mean an adjudication and disposition hearing. \u201c \u2018Adjudication hearing\u2019 means a hearing to determine whether the allegations in a petition are substantiated by proof.\u201d Ark. Code Ann. \u00a7 9-27-303(5) (1991). \u201c \u2018Disposition hearing\u2019 means a hearing held following an adjudication hearing to determine what action will be taken in delinquency. . .cases.\u201d Ark. Code Ann. \u00a7 9-27-303(15) (1991). At the \u201cadjudication (D)\u201d hearing the trial court found that appellant had committed the burglary, adjudicated him to be a delinquent, and placed him on probation for one year. The probation was subject to written conditions specified by the court. See Ark. Code Ann. \u00a7 9-27-330(3) (1991). The reckless burning charge was dismissed.\nFive months later, on April 17, 1991, the Prosecuting Attorney filed a petition to revoke probation. See Ark. Code Ann. \u00a7 9-27-339(b) (1991). As a result of the petition, the appellant was directed by a form order to appear for another \u201cadjudication (D)\u201d on September 26, 1991. He failed to appear and a warrant was issued for his arrest. He was quickly arrested and, on September 30,1991, was released into the custody of his mother. The revocation hearing was rescheduled for December 12,1991.\nThe applicable statute provides that at a revocation hearing, if the trial court finds beyond a reasonable doubt that the juvenile has violated the terms of probation, the court may: (1) extend probation; (2) impose additional conditions of probation; or (3) make any disposition that could have been made at the time probation was originally imposed. Ark. Code Ann. \u00a7 9-27-339(e) (1991). At the revocation hearing on December 12, the special judge apparently found beyond a reasonable doubt that the juvenile had violated the terms of probation, but the judge did not revoke probation and fine appellant as could have been done. See Ark. Code Ann. \u00a7\u00a7 9-27-337(7), 9-2-339(e) (1991). Instead, the special judge extended probation for an additional year, ordered appellant to stay with his mother, undergo psychological, drug, and alcohol assessment, and continue to attend the Watershed project. In addition to the foregoing adjudication, the last sentence of the form order provides: \u201cThis matter is set for Disposition/Review on the_day of-, 19\u2014 at \u2014 A.M./P.M.\u201d The date of March 18,1992, and time of 9:15 were filled in by handwriting. There were no strike marks on the strike-the-wrong-word form order indicating whether the subsequent hearing on March 18 was to be for disposition or review, but that is of no real significance since the applicable statutes do not provide for a different disposition of the same petition at another hearing three months later. The special judge signed another form order styled \u201cOrder to Appear,\u201d which had a check mark in a box to notify appellant that the appellant was to appear on March 18, 1992, for \u201cReview of compliance with Orders of this Court.\u201d \u201c \u2018Order to appear\u2019 means an order issued by the court directing a person who may be subject to the court\u2019s jurisdiction to appear before the court at a date and time as set forth in the order.\u201d Ark. Code Ann. \u00a7 9-27-303(25) (1991).\nThe Prosecuting Attorney did not file another petition to revoke probation. No document was served on appellant indicating that a different disposition was to be considered. On March 18, appellant appeared with counsel pursuant to the \u201cOrder to appear\u201d but, rather than having just a review, the trial court revoked probation and fined appellant.\nAppellant appeals and argues that on December 12, 1991, the trial court made a \u201cdisposition\u201d of the petition to revoke under Ark. Code. Ann. \u00a7 9-27-339(e)(l) \u2014 {2), and the trial court could not make a different disposition of the same petition three months later. The argument is meritorious.\nThe statute governing revocation proceedings in juvenile court is both clear and specific. Ark. Code Ann. \u00a7 9-27-339 (1991) provides that after an adjudication of delinquency, the court may place a juvenile on probation, and, after a juvenile is placed on probation, the prosecuting attorney may file a petition to revoke probation. It does not provide for revocation in any other manner. The petition for revocation must be served on the juvenile, and a revocation hearing must be set within a reasonable time. At that hearing, \u201cif the trial court finds beyond a reasonable doubt that the juvenile violated the terms and conditions of probation, the court may:\n(1) Extend probation;\n(2) Impose additional conditions of probation; or\n(3) Make any disposition that could have been made at the time probation was imposed.\u201d Ark. Code Ann. \u00a7 9-27-339(e) (1991).\nThe trial court was authorized by the above-quoted statute to deny the petition to revoke and extend probation under subsection (1) above, as it did in this case, but it was not authorized to take that action and then, three months later, change its mind and grant the petition to revoke under subsection (3) above. After the first disposition denying revocation, the statute requires the prosecutor to file another petition for revocation and give notice to the delinquent that revocation is again being considered before probation can be revoked. If we were to construe the statute to authorize the procedure used in this case, it might well run afoul of the prohibition against double jeopardy, for it was settled by the Supreme Court in Breed v. Jones, 421 U.S. 519 (1975), that jeopardy does attach within the meaning of the Fifth Amendment, as applicable to the states under the Fourteenth Amendment, in an adjudicatory delinquency proceeding in juvenile court. Accordingly, we reverse and remand to the juvenile division of chancery court for proceedings consistent with this opinion.",
        "type": "majority",
        "author": "Robert H. Dudley, Justice."
      }
    ],
    "attorneys": [
      "William R. Simpson, Public Defender, by: Kent C. Krause, Dept\u2019y Public Defender.",
      "Winston Bryant, Att\u2019y Gen., by: Teena L. White, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Sherman AVERY v. STATE of Arkansas\n92-760\n844 S.W.2d 364\nSupreme Court of Arkansas\nOpinion delivered January 11, 1993\nWilliam R. Simpson, Public Defender, by: Kent C. Krause, Dept\u2019y Public Defender.\nWinston Bryant, Att\u2019y Gen., by: Teena L. White, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0391-01",
  "first_page_order": 415,
  "last_page_order": 418
}