State v. Ojeda , 158 Ariz. 589 ( 1988 )

OPINION

HATHAWAY, Judge.

Appellant was convicted in 1985 of unlawful possession of a narcotic drug, a class 4 felony, and placed on three years’ probation. On November 17, 1987, the state filed a petition to revoke, alleging that appellant had violated the conditions of his probation by 1) failing to pay his fine, 2) failing to pay probation fees, 3) failing to report to his probation officer on five specified dates, 4) failing to avoid contact with marijuana on specified dates, 5) failing to avoid contact with cocaine on specified dates, and 6) possessing live ammunition. At the evidentiary hearing, the state agreed to dismiss the last three allegations in return for appellant’s admission of the first three allegations.

At the evidentiary hearing, appellant was asked by the trial court if he had had the ability to pay the fine, to which appellant replied “Well, if I may, you know, things been kind of hard lately so I haven’t been able to come up with it.” Appellant stated, however, that “when things weren’t hard” he had made his payments. The court then directed the state to present its evidence on the first three allegations. Appellant’s probation officer testified that appellant had paid $140 of the $255 total fine, and $470 of $580 total probation fees. In response to counsel’s question as to appellant’s reason for non-payment, the probation officer stated that he did not know why the payments were not made but that appellant had informed him that “business was down.” He further testified that appellant had without explanation failed to report on five occasions during a one-year period.

The court found that the state had proved the first three allegations by a preponderance of the evidence. Appellant’s probation was revoked, and he was sentenced to a mitigated term of two years’ imprisonment with three days’ credit for presentence incarceration.

On appeal, appellant contends that the trial court erred in revoking his probation on the basis of his failure to pay the fines and probation fees in light of the state’s failure to establish that he had the ability to pay, citing Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), and State v. Robinson, 142 Ariz. 296, 689 P.2d 555 (App.1984). While the trial court’s inference that appellant spent available funds on drugs rather than his court-ordered assessments may be correct, it is not supported by the record.

The trial court also found, however, that appellant had failed to report to his probation officer on five occasions, and this finding is substantiated, indeed admitted, by appellant. In State v. Wilson, 150 Ariz. 602, 724 P.2d 1271 (App.1986), Division One of this court affirmed a revocation order which was based on the trial court’s findings of failure to report and failure to pay assessments. Notwithstanding the invalidity under Bearden of the findings with respect to payments, the court affirmed the revocation on the substantiated finding of failure to report. See also State v. Jameson, 112 Ariz. 315, 541 P.2d 912 (1975). Because the finding of the trial court in this case with respect to the failure to report is supported, we affirm the order of revocation.

Appellant’s argument that we cannot know whether the trial court would have revoked his probation exclusively for his failure to report to his probation officer as ordered on five occasions is particularly unpersuasive in view of the court’s statement that, “[h]is obligation is to make those meetings, otherwise he can go to prison and doesn’t have to make it anymore.”

Probation, as a matter of grace, allows a convict to serve his sentence outside the prison walls upon compliance with specified conditions. Where several violations are charged, any one alone may serve as a valid basis to revoke probation. State v. Gomez, 112 Ariz. 243, 540 P.2d 1224 (1975). In Gomez, the supreme court analogized the situation to submitting lesser-included counts to the fact finder; whether one or several are found, only one penalty is imposed.

Appellant also contends that the trial court failed to give him appropriate credit for presentence incarceration. Three days’ credit was given, whereas the presentence report indicates that appellant was originally sentenced to serve 14 days in jail as a condition of his probation. The states concedes that the record is unclear on this point and that a remand is necessary to determine the appropriate credit.

The order revoking probation and the sentence are affirmed; the matter is remanded for a determination of credit for presentence incarceration.

HOWARD, J., concurs.