¶1dissenting. I dissent because I disagree with the majority’s conclusion that the appellant was provided adequate notice of the charge against him. The appellant, charged with and acquitted of delivery of a controlled substance, was immediately after trial found to have violated the conditions of his probation by committing a different offense, delivery of a counterfeit substance. This set of circumstances is precisely analogous to those presented in the case of Robinson v. State, 14 Ark. App. 38, 684 S.W.2d 824 (1985), where the appellant was charged with robbery and theft by receiving, acquitted, and revoked for committing a different offense, third degree battery.
¶2The majority attempts to distinguish Robinson, supra, on the ground that the circumstances of that case resulted in greater prejudice to the defendant. I cannot agree. First, it should be noted that the appellant in Robinson, supra, admitted in open court that he hit the victim; all that was at issue in that case was the appellant’s asserted defense of justification. Certainly the appellant in the present case, who admitted no wrongdoing, was equally prejudiced.
¶3Although the majority cites the similarity between the offenses of delivery of a controlled substance and delivery of a counterfeit substance as a factor lessening the prejudicial impact of the State’s failure to provide adequate notice on the basis for revocation, I submit that this similarity resulted in confusion of the issues and placed the appellant on the horns of a dilemma. Charged with delivery of a controlled substance, the appellant sought to establish that no controlled substance was delivered, and that the substance involved was merely aspirin. Having successfully raised sufficient doubt concerning the nature of the substance to win an acquittal, the appellant’s probation was revoked for selling aspirin.
¶4Certainly, selling aspirin may be a crime under certain circumstances, but whereas the thrust of a prosecution for delivery of a controlled substance is the nature of the substance, the emphasis in a prosecution for delivery of counterfeit substance is the accused’s representations or misrepresentations concerning the nature of the substance, and other evidence bearing on the accused’s intent to deceive. See Ark. Code Ann. § 5-64-101 (e) (Supp. 1991). I submit that it is fundamentally unfair for the State to permit a defendant to prepare his case on the principal charge on the basis of the nature of the substance alleged to have been sold, prevail on that issue, and then revoke his probation for a different offense involving proof of a substantially different character based on the proof adduced by the defendant in his trial on the principal charge. As the Court noted in Robinson, supra:
[ A] defendant cannot properly prepare for the hearing without knowing in advance what charges of misconduct are to be investigated as a basis for the proposed revocation of the probation.
¶5Robinson, supra, quoting Hawkins v. State, 251 Ark. 955, 475 S.W.2d 887 (1972).
¶6I respectfully dissent.
¶7Mayfield, J., joins in this dissent.