387 S.W.3d 245
Ark. Ct. App.2011Background
- Newsom pled guilty to theft of property (12/12/2005) and received five years’ probation with restitution of $8,190 due at $300/month starting 1/6/2006, plus fines/costs and 100 hours of community service within one year.
- An Order of Conditions of Probation on 2/7/2008 extended probation 34 months and reduced restitution to $241/month, with fines/costs and 28 hours of community service within one year.
- State filed petition to revoke probation on 11/4/2010 for failures including not reporting, nonpayment of restitution, failure to pay supervision fees, and unpaid fines/costs.
- At a 2/24/2011 revocation hearing, probation officer testified Newsom had paid little toward restitution (last payment 5/25/2010, $50) and claimed inability to pay due to unemployment; Newsom presented family support and health issues as barriers; the court questioned credibility and found she could have paid more if seeking employment.
- The trial court extended Newsom’s probation for three more years to pay restitution, and noted it was not convinced she was unable to find employment; on appeal, the court applied the proper statutory framework for restitution-based probation violations and affirmed the extension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court properly applied § 5-4-205(f)(3) factors | Newsom contends court failed to adequately consider factors. | State asserts court considered factors and weighed credibility. | Yes, court considered factors and credible findings supported extension. |
| Whether state's proof showed inexcusably failed to pay restitution | Newsom argues inability to pay was not proven inexcusably. | State showed lack of good-faith effort and undermined credibility. | Court upheld extension; burden shifted and State proved lack of good-faith effort. |
| Whether probation extension was proper under statutory framework | Newsom argues improper scope of extension. | State relies on § 5-4-303(h)(2) allowing extension for payment. | Affirmed; extension permitted to allow payment of restitution. |
Key Cases Cited
- Barringer v. State, 2010 Ark. App. 369 (Ark. App. 2010) (deference to credibility; preponderance standard in probation revocation)
- Hanna v. State, 372 S.W.3d 375 (Ark. 2009) (restoration of burden when restitution is a condition of probation)
- Rudd v. State, 61 S.W.3d 885 (Ark. App. 2001) (probation violation standard; one violation sufficient for revocation)