Bogard v. State
450 S.W.3d 690
Ark. Ct. App.2014Background
- Appellant Vincent Bogard was tried by the Pulaski County Circuit Court on charges of robbery and theft of scrap metal; bench trial resulted in conviction for robbery and acquittal on the theft charge.
- Facts: Bogard was seen removing an air-conditioning condensing coil from a rental property and placing it in his truck after confronting workers at the scene; a worker was shoved during the encounter and the truck fled.
- Victor/owners testified the air-conditioning unit was damaged and replacement costs were about $1,939.50 (trial testimony varied by $57 from the restitution amount ordered).
- At sentencing the State sought restitution for the cost to repair/replace the air-conditioning unit; the court ordered Bogard to pay $1,996.50 in restitution to the property owner, Steven Whitwell.
- Bogard objected because he had been acquitted of the theft charge that corresponded to the economic loss; he argued restitution must be tied to the offense of conviction.
- The appellate court reversed, holding the trial court erred in ordering restitution for losses tied to the offense of theft when Bogard was acquitted of that theft charge, and ordered any restitution already paid to be refunded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court may order restitution for economic loss caused by a charge of which the defendant was acquitted | State: A conviction for any offense (robbery) authorizes restitution under Ark. Code § 5-4-205; intent-to-steal element links robbery to the theft loss | Bogard: Restitution must be based on actual economic loss caused by the offense of conviction; he was acquitted of the theft that caused the loss | Reversed: Restitution may not be ordered for economic loss tied to an offense for which defendant was acquitted; refund any amounts paid |
Key Cases Cited
- Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (Ark. 2006) (restitution’s goal is to make the victim whole)
- Simmons v. State, 90 Ark. App. 273, 205 S.W.3d 194 (Ark. Ct. App. 2005) (error to order restitution for offenses not charged or not resulting in conviction)
- Fortson v. State, 66 Ark. App. 225, 989 S.W.2d 553 (Ark. Ct. App. 1999) (same principle: restitution must relate to conviction)