ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III
CACR03-141
October 22, 2003
TIMOTHY WEILENMAN, JR. AN APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT
v. [CR-99-421]
STATE OF ARKANSAS HONORABLE J. MICHAEL FITZHUGH,
APPELLEE JUDGE
AFFIRMED
Olly Neal, Judge
Appellant, Timothy Weilenman, Jr., appeals from a Sebastian County Circuit Court order revoking his suspended imposition of sentence and sentencing him to a year in the Department of Correction with an additional seven years’ suspended imposition of sentence. On appeal, appellant asserts that (1) the trial court lacked jurisdiction to revoke his suspended imposition of sentence, (2) he was not afforded due process of law, and (3) the revocation of his suspended imposition of sentence was not supported by sufficient evidence. We affirm.
On January 12, 2000, appellant pleaded nolo contendere to the offense of sexual abuse pursuant to Ark. Code Ann. § 5-14-108 (1997). The offense purportedly occurred between February 13, 1998, and April 18, 1998. Appellant was sentenced to two years in the Department of Correction with eight years’ suspended imposition of sentence. A judgment and commitment order was entered on February 11, 2000. A condition of appellant’s suspended sentence was that appellant enter a sexual-offender counseling program, if available, while incarcerated, and if not, within sixty days of his release. Sexual-offender counseling was not available while appellant was incarcerated. He was released on September 14, 2001.
The State filed a petition to show cause as to why appellant should not be held in contempt for failing to comply with the terms of his suspended sentence on January 25, 2002. The State specifically alleged that appellant had failed to enroll in a sexual-offender program within sixty days of his release. Following an April 10, 2002 hearing, the court dismissed the State’s petition and entered a modifying order that provided that appellant was to enter a sexual-offender program in Iowa within ninety days. The court further ordered appellant to provide proof that he completed the program.
On July 19, 2002, the State filed a petition to show cause alleging that appellant had failed to enroll in a sexual-offender program within ninety days of the April 2002 order. A hearing on the petition was held on October 23, 2002. At the hearing, Kathryn Collins, appellant’s mother, testified. Mrs. Collins stated that she lives in Des Moines, Iowa. She testified that following appellant’s release, she had contact with appellant every day. Mrs. Collins testified that on one occasion appellant told her that he could not afford counseling and that on another he stated that he did not need counseling. Mrs. Collins also testified that appellant received counseling from Bruce Barker, a therapist at Broadlawns Medical Center; however, she admitted that Mr. Barker was not a sexual-offender counselor.
Appellant testified that Mr. Barker once worked on a sexual-offender counseling team. He said that Mr. Barker had agreed to provide him temporary treatment until he could get into a program. Appellant also said that he was told it was okay to seek temporary counseling with Mr. Barker. Appellant testified that he saw Mr. Barker every week for two months. During his testimony, appellant said that he tried to work in order to save money for counseling and that he had managed to save $100 towards the cost of his counseling.
At the conclusion of the hearing, the trial court revoked appellant’s suspended imposition of sentence and sentenced appellant to one year in the Department of Correction with an additional seven years’ suspended imposition of sentence. From that order comes this appeal.
In his first argument on appeal, appellant asserts that the trial court lacked jurisdiction to modify his suspended imposition of sentence following the execution of his sentence on February 11, 2000. Appellant asserts that the court did not have jurisdiction to enter the April 15, 2002 modification order, ordering appellant to enter a sexual-offender program within ninety days. Therefore, the court could not revoke appellant’s suspended imposition of sentence based on his failure to comply with the April 15 order.
Whether a court has jurisdiction to modify or amend an original sentence once a valid sentence is put into execution depends upon whether the case is controlled by Act 1569 of 1999, which became effective on April 15, 1999. Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002). Act 1569 empowered circuit courts to modify original sentences, following revocation hearings. Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001). Act 1569 is not applied retroactively. Timmons v. State, Ark. App. , 100 S.W.3d 52 (2003). If Act 1569 was not in effect at the time a crime was committed, then the trial court lacks jurisdiction to modify or amend an original sentence once a valid sentence is put into execution. Pierce v. State, supra.
Because Act 1569 was not in effect at the time the crime was committed, it does not apply in the case at bar. On April 10, 2002, the trial court could have revoked appellant’s suspended imposition of sentence; instead, it chose to give appellant an additional ninety days to find a treatment facility. Arkansas Code Annotated section 5-4-306(b) (Supp. 2003) provides that during the period of suspension the court may modify the conditions imposed on the defendant or impose additional conditions as authorized by Ark. Code Ann. § 5-4-303 (Supp. 2003). See also McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). Section 5-4-303(c)(10) provides that as a condition of suspension the court may require the defendant to “[s]atisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” Accordingly, on April 10, 2002, the trial court did not modify or amend appellant’s suspended sentence; it merely modified a condition of appellant’s suspended imposition of sentence. Hence, the court retained its jurisdiction to revoke appellant’s suspended imposition of sentence upon his non-compliance with the April 15 order.
Appellant also argues that he was not afforded due process of law because he did not have notice of the purpose of the October 23, 2002 hearing. This argument is not preserved for appellate review. Appellant failed to raise this issue below. We have repeatedly stated that we will not address arguments raised for the first time on appeal. Elser v. State, Ark. , S.W.3d (May 8, 2003).
In his last argument on appeal, appellant alleges that the trial court erred by finding by a preponderance of the evidence that sufficient evidence existed to revoke his suspended imposition of sentence. To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Peterson v. State, Ark. App. , 100 S.W.3d 66 (2003). In order for appellant’s suspended sentence to be revoked, the State need only prove that the appellant committed one violation of the conditions. Id. On appellate review, the trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended-sentence revocation. Id. Thus, the burden on the State is not as great in a revocation hearing. Id. Since determination of a preponderance of the evidence turns on questions of credibility and weight to be given the testimony, we defer to the trial judge’s superior position. Id.
Appellant’s suspended imposition of sentence was conditioned upon his enrolling in a sexual-offender treatment program. Appellant’s failure to do so was a violation of the terms of his suspended imposition of sentence; therefore, we affirm the revocation of appellant’s suspended imposition of sentence.
Affirmed.
Stroud, C.J., and Roaf, J., agree.