2013 Ark. App. 643
Ark. Ct. App.2013Background
- Collier appealed a revocation of his suspended imposition of sentence (SIS) for restitution nonpayment.
- He was sentenced to four years with eleven years SIS after guilty pleas to seven counts of second-degree forgery as a habitual offender; restitution of $1,846 was due at $50 per month.
- The State filed a petition to revoke SIS alleging several months of no restitution payments.
- Evidence showed Collier made only two $50 payments in June and July 2011; no further payments were found.
- Collier offered a credibility-based defense, citing life events, schooling, housing, a Pell Grant, and attempts to borrow money, as excuses for nonpayment.
- The circuit court found nonpayment was willful and revoked SIS, imposing imprisonment and leaving restitution due after release.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the nonpayment of restitution willful? | State: nonpayment was inexcusable; burden shifts to Collier to show good faith. | Collier: he lacked ability due to circumstances but acted in good faith. | No clear error; nonpayment was proven and not shown to be in good faith. |
| Did the circuit court properly consider Collier's employment, resources, and willfulness? | State: court properly weighed factors and credibility. | Collier: evidence of limited funds and life events should absolve willfulness. | Circuit court’s weighing of factors supported revocation. |
| Is the State required to prove lack of good faith once nonpayment is shown? | State: burden remains to show lack of good faith after nonpayment evidence. | Collier: State failed to disprove good faith. | State met burden; evidence supported lack of good faith. |
Key Cases Cited
- Reyes v. State, 2012 Ark. App. 358 (Ark. App. 2012) (burden in revocation may be less than criminal conviction; review for preponderance)
- Pitchford v. State, 2011 Ark. App. 188 (Ark. App. 2011) (burden-shifting framework in revocation matters)
- Bohlman v. State, 2013 Ark. App. 162 (Ark. App. 2013) (restitution revocation where failure to pay shown; consider employment and willfulness)
- Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (Ark. App. 1988) (nonpayment may support revocation if inexcusable)
- Newsom v. State, 2011 Ark. App. 760, 387 S.W.3d 245 (Ark. App. 2011) (credibility could be tested to assess good faith)