*1 184
Affirmed. of Arkansas HOFFMAN STATE
Robert 711 86-14 S.W.2d Court of Arkansas Supreme 9, 1986 delivered June Opinion *2 Evans, Evans, Jr., Evans & E. by: James for appellant. Clark, Steve Sudduth, Gen., by: Mary Beth Att’y Asst. Gen., Att’y for appellee. Holt, Jr.,
Jack Chief Justice. On February appellant offered theft by deception which was taken under advisement by the trial court for of seven years behavior, conditioned upon the following: good in the amount of payable and restitution
court costs 1,1985, state filed monthly April installments. On advisory sentence because a motion for revocation restitution all of the scheduled failure to make appellant’s 9, 1985, at the court conducted On July payments. the terms had violated it found the appellant which time The court February 24th. court judgment conditions of the seven sentence year five and one-half years ordered that deferred, Correction, theretofore the Arkansas Department that this It is from that decision pronounced upon appellant. Ct. R. 29 jurisdiction pursuant Sup. Our brought. appeal an act of the General we asked to (l)(c), being interpret are *3 Assembly. he finding trial court’s that claims that the appellant court, and that said as ordered the by
failed to restitution pay cause, the clearly against good failure was willful and without evidence, violated and that the revocation preponderance right his to equal protection. that entered his appellant
The evidence demonstrates when 24, set a of he and his plea guilty attorney up February $1,000.00 month, that schedule for restitution of per payment and that of his coming attorney. from his calculations figure that rate. that he wanted to at acknowledged by pay was appellant and tendered a plea the time of his the executed plea, At appellant that, acknowledged in which he to the trial court questionnaire would recom- attorney of the guilty, prosecuting upon plea the “under advisement for seven plea mend that court take such $1,000.00 when off.” at a month then dismissed years, paid paid the stating trial its judgment court entered Thereupon, was taken under plea “offered of which appellant plea guilty, advisement the Court”. The court further: by of that the
ORDERED AND ADJUDGED taken under advise- hereby Theft be and is by Deception and (7) upon ment the Court for by year(s), Attorney and condi- Prosecuting recommendation following: tioned amount of the defendant restitution in the (1) pay That 2-24-84, $1000.00 $57,040.03, due and the with month, $ balance at 1000.00 4- payable beginning 1-84. 1,1985,
On April the state filed its motion revocation of for sentence, the advisory stating that the defendant has willfully ordered, failed knowingly all the restitution thereby the terms of violating sentence. A advisory was held 9, on said motion on which 1985 at time the state offered evidence that the made payments by were irregular $6,711.92, have resulted in a total which is paid less than the due amount under the schedule. payment
Appellant offered evidence that his ability to make restitu- tion payments was limited inasmuch as his income for 1984 from job Inc., his with National Home Improvement, evidenced form, $8,211.75, W-2 was amount, $5,811.92 and of that paid restitution. The owner of National Home Improvement, Inc., testified that a good and worked for employee him 1984 until owner, of 1985. April According earned approximately between January $900.00 April of that was sent to the court in January restitution. He further that in explained 1985 the appellant had several sales fall through because the title loans used were company discontinued. After April, *4 when appellant left Inc., National Home Improvement, owner testified that tried to find a appellant job with two car but failed. dealerships Inc., National Home Improvement, offered to let appellant come back to work. The owner testified could earn during 1985.
The appellant testified that ishe married and livesin Rogers, Arkansas. He owns a 1984 Toronado and a 1981 truck. pickup he Previously had another truck and two Cadillacs and sold them to the apply loan the car and truck. The two Cadillacs were apparently owned prior incurring the restitution debt. The bought June, Toronado was restitution, in during the $17,000. for testified Appellant his wife is now and has been for unemployed two and months that he lived on her income before she lost her job. Since April, he stated he has looked for jobs in the auto sales field at car in dealerships wife, Arkansas Missouri. Appellant, lived in a stepson large, $475 rented house with a pool for month. per Appellant out, and, moved $275 the rent when he stepson paid
said now rent a where Rogers they wife moved to and his $300 month. duplex be and that he revoked asked that his sentence not
Appellant
$1,000.
$300
instead of
allowed to
month
State,
263,
Accordingly, which years, court intended to sentence the seven were of restitution. This is conditioned suspended court, in its the fact order logical assumption light (5 ‘A) “that fiveand one half adjudged years 9th ordered *5 the sentence to the Arkansas of (7) year Department of seven the upon Correction heretofore deferred be pronounced defendant.” 1977) 41-1209 (Repl. provides
Arkansas Stat. Ann. § in pertinent part:
189 (4) If a a that by court finds of the evidence preponderance the defendant failed to with a inexcusably comply or it suspension condition of his revoke the probation, may or probation at time the suspension any prior expiration of the of or suspension probation.
In a the revoke the burden state to the of a a the prove violation condition preponderance evidence, and on review trial appellate court’s are findings unless are upheld they against a clearly preponderance of the State, 294, evidence. Cavin 11 Ark. 669 508 S.W.2d App. State, 513, (1984); Pearson v. 262 558 (1977). Ark. S.W.2d 149 A preponderance heavily determination the evidence turns on questions credibility and to be weight given testimony. In those we defer to areas the trial judge’s superior position. Cavin, supra.
The trial court’s decision is not a against clearly preponderance evidence. Appellant’s failure make the ordered of his payments, light standard of living, purchase $17,000 car, a did fact that he not job search for sales, field outside the of auto can be construed as an inexcusable failure to with the comply conditions his suspension.
Appellant’s equal protection argument based holdings the U.S. Supreme Court state cannot “impos[e] fine aas sentence and then conver automatically [t] into a term jail solely because the defendant is indigent Tate v. Short, cannot forthwith the fine in pay full.” 401 U.S. (1971); Illinois, see also Williams v. U.S. 235 (1970). held, The Supreme however, Court has also that: revocation for proceedings failure to or pay fine [I]n restitution, a court must sentencing into the inquire rea- for sons the failure to If the pay. probationer willfully refused to or failed to make sufficient bona fide efforts legally acquire the resources pay, court may revoke probation sentence the defendant to imprison- . . . ment.
Bearden v. Georgia, Here, 672 (1983). 461 U.S. counsel, with appellant, the assistance of his own tendered schedule of payment for restitution in exchange a suspended sentence and then made sporadic The trial payments. *6 bona essence, to make sufficient
found, “failed that appellant in Accordingly, the resources pay.” legally acquire fide efforts violation. no equal there was protection Affirmed. J., dissents.
Purtle, Justice, The dissenting. majority opinion Purtle, I. John plea by appellant that the correctly original states clearly and 24,1984. words The exact February taken under advisement “were, of theft deception he plea the trial court [T] for the the Court under advisement by and is taken hereby of the prosecut- recommendation and (7) year(s), upon “One of following .... conditioned ing attorney, upon the rate of restitution at pay was that the appellant the conditions $1,000 month.” in scheduled full did not appellant payments
The 9, advisory sentence. On motion to revoke the the state filed a that “five and was held and the court announced the Arkansas Vi) (7) of the seven sentence to (5 year one half years deferred be pronounced of Correction heretofore Department the defendant.” horses changed this Court and the trial court have Both was not sentenced any middle of the stream. The appellant was unequivo- Corrections. Sentence term the Department How can a pronounced. deferred —not cally unmistakably The imposed? which has not been court revoke a sentence issue on the sentence illegal to wade the majority attempts no There was sentence grounds that it was not to below. objected to until the sentence was object present pronounced. in the trial revocation as hard as he could fought the more? object then this How could he lodged appeal. not stated as as I would like. fully The factual issues are Therefore, I additional facts which I think should will enumerate 24,1984, until plea, February be considered. From the date Form (according earned the end of the year, $8,211.75 $5,811.92 1099) into the trial court as and paid to other wages, The balance of his as paid restitution. During did of these funds. any creditors. not receive Appellant earned hearing, to the time of the up $900.00 of it went to the restitution fund directly $100, balance, garnished and the another except *7 $1,000 the of agreement creditor. Between time revocation, month and the of the unauthorized date creditors, $100 earned and all of it went to except including the restitution fund. true during part 1985. unemployed
However, his former statement employer supported appellant’s that the unemployment due lack of business and not by fault of the appellant. testified that he had been Appellant trying to find work the automobile sales field but had been unsuccess- ful. He was reemployed by at the previous time employer 1,500 $ it was this which him employment paid 1985.
During part the appellant’s he lived in a unemployment house, which had a swimming $475 His pool. wife of the paid part relative, house, rent monthly and a who also lived in the paid balance the rent. Appellant had two Cadillacs when he pled guilty but has since disposed of them for the balance owed them. His wife purchased another automobile but it was on credit and it she used in her business. majority The opinion erroneously indicates that the vehicle was transferred to the appellant.
On four of the page slip opinion court sets forth correctly the controlling Arkansas Statute relevant to revocation suspen- sion, did which not occur in this case. Statutory The requirement is that there be an inexcusable by the defendant to pay failure what he has agreed to pay. Otherwise such would revocation amount to imprisonment for debt. Bearden v. 461 U.S. Georgia, Also, 660 (1983). Short, see Tate v. 401 U.S. (1971). appellant herein have may entered into agreement voluntarily but the prosecuting attorney the court were parties to the agreement.
The remarks and finding of the clearly court reveal this revocation was not based the facts and the law. The trial court stated in as follows: part
All right, gentlemen, let me start this Court is not by saying business, in the collection the civil debt collection business. been; in that intend to ever it put I do not has It never at time. this position know, it been the
Now, position you gentlemen at very of restitution is looked this that nonpayment .... by this court very critically seriously me, is, at say what I am guess trying apparent [I] case, Mr. Hoffman overstated this juncture He a job entered his had plea. or when he ability position debts, he says. has not incurred more and he *8 to bore attempting it is a case of perhaps I think simply to live in a he big continuing lifestyle of an auger, with too just too high present it enjoyed, perhaps situation, wheels in this manner until the and he continued as that. just simple fell off. It just going he was no under the sun that was way [T]here $1,000 back when he able make restitution payments ’84, I he knew or should entered the in and think have known it. unemployed on to that say
The court went but that had find in the car sales business job been unable to he The court further get. there must be other out there could jobs beginning allowed it was a statement from the hopeless that wind. restitution was like spitting should have allowed the court my opinion If range ability. within his an make opportunity payments schedule beginning the court knew from the that In my one have been approved. could not be another should kept no showing there has been opinion absolutely Now, the agreement. under willfully obligation refused to will be out much time will receive and the state nobody anything are winners in this There no expense keeping appellant. loses. including taxpayers, everyone, case— I and remand to the trial court for would reverse considera- tion of alternatives imprisonment appellant.
Timmy TARRY
STATE
Arkansas
CR 86-18
Supreme delivered June Opinion
*9 [Rehearing denied 1986.*] [*] Holt, C.J., not participating.