ARKANSAS COURT OF APPEALS NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION I

DONNA SUE ALDRIDGE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-971

June 25, 2003

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR 2000-89]

HON. FLOYD G. ROGERS,

JUDGE

REBRIEFING ORDERED

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal. Appellant was provided with a copy of her counsel's brief and has submitted pro se points for reversal to which the State has responded. Because neither defense counsel nor the State discussed certain issues with regard to sentencing that can be raised for the first time on appeal, we deny defense counsel's motion to withdraw and order rebriefing.

On November 4, 1996, in the Crawford County Circuit Court, Donna Sue Aldridge entered a plea of nolo contendere to violation of the Arkansas Hot Check Law in CR-96-301,which offense was committed on August 23, 1996. She received three years' suspended imposition of sentence, one condition of which was that she report to a probation officer for twelve months, and was ordered to pay a $500 fine, $100 in costs, and $617.39 in restitution. On December 9, 1998, the State filed a petition to revoke appellant's suspended sentence in CR-96-301 alleging that she had failed to make a payment toward her restitution, leaving a balance of $475.50, and had failed to make any payment at all toward her fine and costs, leaving a balance of $600. Following a hearing on the State's petition on March 27, 2000, the trial court ordered appellant to serve six months in the Crawford County Detention Center and to pay the $475.50 in restitution that was previously ordered. Ostensibly, the trial court did not revoke appellant's suspended sentence.

On April 24, 2000, appellant pleaded nolo contendere to violation of the Arkansas Hot Check Law in CR-2000-89, which offense was committed on October 1, 1996. The trial court withheld imposition of sentence for a period of five years conditioned upon appellant's good behavior; ordered her to serve sixty days in the Crawford County Detention Center with credit for forty days served; ordered her to pay restitution in the amount of $439.43; waived her fine and court costs; and noted that her disposition would run concurrently with the disposition in CR-96-301.

On May 6, 2002, the State filed a petition to show cause why appellant had violated the court's orders, alleging that she had failed to make any payment toward restitution in CR-96-301 since May 7, 1997, leaving a balance of $475.50, and had failed to make any payment whatsoever toward restitution in CR-2000-89, leaving a balance of $439.43.

Following a hearing on July 17, 2002, the trial court revoked appellant's suspended sentences in both CR-96-301 and CR-2000-89 and ordered her to serve two years in the regional punishment facility for failing to pay her fine in CR-96-301 and restitution in both CR-96-301 and CR-2000-89.

Sufficiency of the Evidence

At the hearing held on July 17, 2002, no testimony was presented from either side. Instead, the State introduced two exhibits without objection. The first exhibit was a document entitled "Restitution Journal" for CR-2000-89 wherein restitution was set in the amount of $439.43. It was entirely blank reflecting that no payments had been made. The second exhibit was a "Restitution Journal" for CR-96-301 with restitution set in the amount of $675.50. One payment of $200 was made on May 2, 1997, and the ledger indicated that no payments had been made thereafter.

In his brief, defense counsel argues that the trial court's finding that appellant had failed to make any payment toward restitution was not clearly against the preponderance of the evidence, given the State's evidence of appellant's payment history and given that no testimony as to appellant's inability to pay was presented at the hearing.

Appellant filed pro se points for reversal arguing that she was unable to pay the fine and restitution because of various family obligations and medical expenses.

In its reply to appellant's pro se argument on appeal, the State maintains that, because appellant failed to offer any explanation at the hearing regarding her failure to makepayments, the trial court did not err by finding that she had violated the terms and conditions of her probation.1

In a revocation proceeding, the State bears the burden of proving a violation of a condition of suspended sentence by a preponderance of the evidence. See Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). On appeal, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id.

Generally, where the alleged violation of the conditions of suspension is a failure to make payments as ordered, the State has the burden of proving by a preponderance of the evidence that the failure to pay was inexcusable. Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984). The burden of proof does not shift. See Brown v. State, 10 Ark. App. 387, 664 S.W.2d 507 (1984). However, once the State has introduced evidence of nonpayment, the burden of going forward does shift to the defendant to offer some excuse for nonpayment. Id. To hold otherwise would place a burden upon the State which it could never meet -- it would require the State, as part of its case in chief, to negate any possible excuses for nonpayment. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988).

At the hearing, the State introduced into evidence two restitution ledgers, the accuracy of which was stipulated to by defense counsel. It was then up to appellant to offer some excuse for not paying the restitution and fine. Although appellant interjected comments as to her inability to pay, she chose not to testify in that regard. Appellant's failure to goforward with any evidence to rebut the evidence put forth by the State means that the trial court did not err in finding that appellant had violated a condition of her suspended sentences. Therefore, we agree that there is no meritorious argument to be made with regard to the sufficiency of the evidence.

Sentencing

Defense counsel contends that appellant received an illegal disposition in CR-96-301 because both a suspended imposition of sentence and probation were imposed. Defense counsel relies on Ark. Code Ann. § 5-4-104(e)(1)(B)(i) (Repl. 1997) for the proposition that the trial court could sentence appellant to either a suspended imposition of sentence or probation but not both. The supreme court in Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), noted that a defendant could not be sentenced to both suspended imposition of sentence and probation simultaneously, as the former is "without supervision" and the latter requires "supervision of a probation officer." See also Sisk v. State, ___ Ark. App. ___, 101 S.W.3d 248 (March 19, 2003). In light of this precedent, we agree that appellant received an illegal sentence in CR-96-301.

In addition, defense counsel points out that the three-year suspended imposition of sentence appellant received in CR-96-301 expired on November 4, 1999, so that the trial court lacked jurisdiction to revoke her suspended sentence in 2002. Defense counsel asserts, however, that because the issue was not raised below, it is "likely waived" for purposes of appeal. Defense counsel is mistaken. We review allegations of an illegal sentence whether or not an objection was made in the trial court. See Bilderback v. State, 319 Ark. 643, 893S.W.2d 780 (1995); see also Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992); Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997).

Defense counsel further argues that, even if an argument could be made with regard to appellant's sentence in CR-96-301, the trial court was within its authority to revoke appellant's suspended sentence in CR-2000-89. Defense counsel essentially asserts that appellant has suffered no prejudice.

The United States Supreme Court has stated that an Anders brief may be submitted in lieu of a merit appeal only when such an appeal would be "wholly frivolous." See Eads v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). The test is not whether counsel thinks the trial court committed no reversible error, but rather whether the points to be raised on appeal would be "wholly frivolous." Ofochebe v. State, 40 Ark. App. 92, 844 S.W.2d 373 (1992). If any of the issues raised are not wholly frivolous, we do not determine whether error was committed but, instead, order rebriefing. See Eads, supra.

The possible sentencing issues include, but are not limited to, the following: (1) the applicability of either Act 1569 of 1999 or Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994) and its progeny in regard to the trial court's ability to amend or modify the sentence in CR-96-301 once it had been placed into execution; (2) whether the trial court's action on the State's petition filed on December 9, 1998, amounted to a revocation in CR-96-301, and if so, the ramifications of the trial court's action in revoking it a second time in 2002; and (3) whether the trial court had continuing jurisdiction over this recalcitrant appellant and,thus, had the authority to revoke appellant's suspended sentence in CR-96-301 even after the suspended period had expired pursuant to Ark. Code Ann. § 5-4-303(f) (Repl. 1993), which is an exception to Ark. Code Ann. § 5-4-309(e) (Repl. 1993), where payment of restitution is involved.

On rebriefing, defense counsel may elect to submit either a brief in adversary form or one in compliance with Anders and Rule 4-3(j).

Rebriefing ordered.

Bird and Griffen, JJ., agree.

1 We assume the State is referring to appellant's suspended sentences.