dissenting. I would reverse and remand this petition for revocation because there is insufficient evidence to support the decision to revoke. The State’s petition as abstracted provided only one basis for the revocation:
The defendant has violated the terms of his probationary sentence in that on August 4, 1999, he committed the offense of Domestic Battery in the First Degree, which occurred after his probationary sentence. (Emphasis added.)
The issue is preserved for our review. On October 11, 2001, the supreme court overruled Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000), and held that a motion for directed verdict is not required in a revocation proceeding in order to preserve the issue of sufficiency of the evidence for appeal. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001).
Regarding the merits, there is no need to belabor the facts of this unfortunate family scuffle, as they are well-documented in the majority opinion and in Judge Griffen’s dissent. By no stretch of the imagination do these facts support a finding that Obbie Willis committed Battery in the First Degree, domestic or otherwise, because it requires the infliction of serious physical injury. See Ark. Code Ann. § 5-26-303 (Supp. 2001).1 On appeal, Willis argues that the evidence was insufficient to support the revocation, and cor-recdy points out that the “sole basis for the revocation case” was the primary offense charged in the criminal trial.
I am not unmindful of Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992), Selph v. State, 264 Ark. 197, 570 S.W.2d 256 (1978), Venable v. State, 27 Ark. App. 289, 770 S.W.2d 170 (1989), Felix v. State, 20 Ark. App. 44, 723 S.W.2d 839 (1987), and Robinson v. State, 14 Ark. App. 38, 684 S.W.2d 824 (1985), cases that would appear to support the proposition that this court could determine that Willis committed a lesser-included offense of first-degree battery, and affirm on that basis. Whether or not this is “well-settled” law, most of these cases are readily distinguishable. Only Selph and Venable are in any sense analogous in that both involve revocations based on a single new criminal charge. In Davis, the appellant was convicted of rape, and his probation was revoked based on the same conduct in a proceeding held prior to his rape trial. The trial court revoked Davis’ probation based on the lesser-included offense of sexual abuse in the first degree, and the supreme court affirmed both the rape conviction and the probation revocation. In Robinson, the court of appeals, in reversing the revocation of appellant’s suspended sentence that was based on the trial court’s finding that a lesser-included offense was committed, held that third-degree battery was not a lesser-included offense of robbery and that the appellant had not been given notice that a battery charge would be the basis for revocation. Here, the State vigorously pursued only the charge of first-degree battery, misstated the law both below and now on appeal,2 and is sticking to its guns on appeal that Willis committed a non-existent first-degree battery offense and not some lesser-included offense. Moreover, it is clear from the abstract that neither counsel nor the trial court was ever able to sort out the precise offense being charged. To affirm this revocation under these circumstances would result in the sort of rude justice that this court should not countenance.
Moreover, Willis’s case is clearly distinguishable from the many cases in which our appellate courts have held that evidence that is insufficient for a criminal conviction may be sufficient for probation revocation. See e.g. Kirby v. State, 52 Ark. App. 161, 915 S.W.2d 736 (1996). Nor is it simply a matter of the credibility of the witnesses. The alleged victim’s testimony does not even come close to making out a case for first degree battery, and there is no excuse for a trial court dispensing out slipshod justice in this fashion, or for this court to sanction it by affirming this revocation.
I would reverse.
Griffen, J., joins.
CA CR 01-59
71 S.W.3d 61 Opinion delivered March 13, 2002 1Obbie WILLIS v. STATE of Arkansas
Ark. Code Ann. § 5-26-303 was amended twice on the same date by the 1999 General Assembly. See Acts 1999, No. 1317, § 2 and No. 1365, § 1. Pursuant to Ark. Code Ann. § 1-2-207, the last enactment, No. 1365, has been codified.
The State contends on appeal that Willis was charged with violating Ark. Code Ann. § 5-26-303(a)(4)(Supp. 2001). There is no such provision, and reference to this subsection is found only in the “A.C.R..C. Notes,” following the text of the code, because it was contained only in the earlier uncodified act. See also footnote 1.