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ARKANSAS COURT OF APPEALS DIVISION II No. CR-15-375

ADAM EUGENE LANE Opinion Delivered November 18, 2015 APPELLANT APPEAL FROM THE SEBASTIAN V. COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. CR-2012-1209] STATE OF ARKANSAS APPELLEE HONORABLE J. MICHAEL FITZHUGH, JUDGE

AFFIRMED

CLIFF HOOFMAN, Judge

Appellant Adam Lane appeals from the Sebastian County Circuit Court’s revocation

of his suspended imposition of sentence (SIS). On appeal, Lane argues (1) that the circuit

court erred by not providing a written statement of the evidence relied on and the reasons for

revoking his SIS and (2) that the circuit court erred by not holding the revocation hearing

within sixty days of his arrest. We affirm.

In October 2013, Lane pled guilty to being a felon in possession of a firearm and was

sentenced to six years’ incarceration, followed by four years’ SIS. He signed a document

outlining the written terms and conditions governing his behavior during the period of his

suspension. Lane was released on parole in December 2014. Lane failed to report to his

parole officer in January 2015, and he was then arrested at a motel in Fort Smith on January

27, 2015, and charged with possession of methamphetamine with intent to deliver, Cite as

simultaneous possession of drugs and a firearm, possession of drug paraphernalia, and felon in

possession of a firearm.

A petition to revoke was filed by the State on February 3, 2015, alleging that Lane had

violated the conditions of his SIS by committing the new offenses. The bench warrant on the

revocation petition reflects that it was served on Lane on February 4, 2015. On April 8,

2015, the revocation hearing was held, at the conclusion of which the circuit court found that

Lane had violated the conditions of his SIS based on his possession of drugs and a firearm. A

sentencing order was entered on April 14, 2015, and Lane filed a timely notice of appeal from

this order.

On appeal, Lane does not challenge the sufficiency of the evidence supporting the

revocation of his SIS; instead, he argues that the circuit court failed to comply with two of

the provisions contained in Arkansas Code Annotated section 16-93-307(b) (Supp. 2013).

The relevant portions of this statute are set forth below:

(b)(1) A suspension or probation shall not be revoked except after a revocation hearing. (2) The revocation hearing shall be conducted by the court that suspended imposition of sentence on the defendant or placed him or her on probation within a reasonable period of time after the defendant’s arrest, not to exceed sixty (60) days. .... (5) If suspension or probation is revoked, the court shall prepare and furnish to the defendant a written statement of the evidence relied on and the reasons for revoking suspension or probation.

Lane first argues that the circuit court erred by not explaining in writing why it

revoked his SIS or on what evidence the revocation was based. He contends that a written

statement is mandatory under section 16-93-307(b)(5) and that the circuit court committed

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reversible error by not complying with this requirement.

The State responds by asserting that this argument is not preserved for appeal because

it was not raised below. See, e.g., Love v. State,

(holding that the

appellant’s argument that the trial court failed to adhere to the writing requirement in

(b)(5) was not preserved for appellate review where no objection was

made to the trial court). Lane recognizes that he did not object to the circuit court’s failure

to provide a written statement, but he argues that he had no opportunity to do so and that

he is therefore not prevented from raising this issue on appeal pursuant to our supreme court’s

decision in Olson v. Olson,

,

. In Olson, the supreme court held

that the appellant was not barred from raising an issue on appeal from the divorce proceeding

where she was not present at the hearing and had no opportunity to object to the trial court’s

ruling. The court also held that the appellant was not required to file a posttrial motion in

order to preserve the claim of error for appeal.

Similarly, in this case, Lane contends that

he could not have raised the issue regarding the writing requirement until the circuit court

entered the sentencing order, in which the court merely checked the box indicating that it

was a revocation and did not explain its findings.

This court rejected an argument virtually identical to Lane’s in Massey v. State,

, where that appellant also relied on Olson for his claim that he was not

procedurally barred from raising on appeal the issue of the trial court’s failure to comply with

the writing requirement in Arkansas Code Annotated section 16-93-307(b)(5). We

recognized in Massey that there is longstanding precedent from both this court and our

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supreme court that a party must raise this issue at the trial-court level in order to preserve the

issue for appeal, and we declined to overrule our prior cases. See, e.g., Love, supra; Dooly v.

State,

,

. We further noted that we did not have the

authority to overrule similar precedent from our supreme court. Massey, supra (citing Brandon

v. State,

,

(1989)). Thus, based on Massey, we hold that the issue

Lane raises on appeal regarding the circuit court’s failure to comply with the writing

requirement is not preserved, and we decline to address it.

Lane attempts to distinguish this case from Love and Massey because he argues that the

circuit court entered only a sentencing order here, not an order of revocation. However,

there is no indication in Love that an order of revocation was entered. Furthermore, Lane

offers no convincing argument why this distinction would matter, given his contention that

he had no opportunity to raise the issue to the circuit court at the hearing and that he was also

not required to raise it by a posttrial motion. We therefore affirm this point on appeal.

In his second point on appeal, Lane argues that, under Arkansas Code Annotated

section 16-93-307(b)(2), a revocation hearing must be held within sixty days of the

defendant’s arrest. Because Lane was arrested on February 4, 2015, and the revocation

hearing was not held until April 8, 2015, sixty-three days later, Lane contends that there was

not compliance with the statute and that the circuit court’s revocation was untimely and

illegal.

The State responds that Lane waived his right to demand that the hearing be held

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within sixty days because he did not object to the delay.1 We agree. We have held that the

sixty-day limitation pertaining to revocation hearings is not jurisdictional; rather, it represents

the period beyond which the hearing cannot be delayed if the defendant objects. Haskins v.

State,

,

(1976); Jones v. State,

,

; Cooper v. State,

. Thus, when the defendant does not object to the

timeliness of the hearing prior to the expiration of the sixty-day period, he waives his right

to insist on a timely hearing. Cooper, supra.

Here, Lane did not request that the circuit court hold the revocation hearing within

sixty days, and in fact, at the beginning of the hearing, Lane asked the circuit court for a

continuance, which was denied. We therefore hold that Lane waived his objection to the

timeliness of the revocation hearing.

In his reply brief, Lane argues in response to the State’s assertion of waiver that

Arkansas Code Annotated section 16-93-307(b)(2) provides a substantive right and that

shifting the burden to the defendant to ask for a timely hearing would limit this right and

would be a separation-of-powers violation. Lane’s argument in this regard is without merit,

1 The State also asserts that the sixty-day requirement did not apply in this case because Lane was arrested and incarcerated on other charges at the time he was served with the arrest warrant on the revocation petition. See, e.g., Bilderback v. State,

,

(1995) (holding that the sixty-day limitation is mandatory only where the defendant is arrested for violating the conditions of his suspension or probation, as the purpose of this time limitation is to limit the amount of time that the defendant is detained in jail awaiting a revocation hearing and is not in the nature of a speedy-trial provision). However, Lane responds that there is no evidence in the record that he was incarcerated on other charges at the time the arrest warrant was served. We agree that the evidence before us is insufficient to conclusively establish this fact and instead affirm on the basis that Lane waived his argument.

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as he does not explain how holding that a defendant must actually assert the statutory right

to a hearing within sixty days would abridge that right, nor does he cite any convincing

authority in support of his argument. Accordingly, we affirm the revocation of Lane’s SIS.

Affirmed.

GLOVER and HIXSON, JJ., agree.

Brett D. Watson, Attorney at Law, PLLC, by: Brett D. Watson, for appellant.

Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.

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