Kyle v. StateKyle v. State
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In this appeal, we are asked to decide whether a circuit court retains jurisdiction over a defendant who has been ordered to pay restitution as a condition of a deferred imposition of sentence until the restitution has been paid in full, even beyond the duration of deferment. 1 We hold that the trial court inherently retains jurisdiction over such a procedure until the full amount of restitution is paid, even if the term of the defendant has expired. Accordingly, we affirm the trial court’s decision to extend appellant’s probation period until her debt was paid.
On January 15, 1985, appellant, Annette Kyle (now Bohlman), was charged with the offense of leaving the scene of a personal injury accident, a Class D felony. On February 13,1985, she entered a plea of nolo contendere to the charge. The court withheld imposition of sentence for five years conditioned on good behavior and ordered her to pay restitution in the amount of $5,789.70 at the rate of $100.00 per month until paid in full. The court also placed Ms. Bohlman on supervised probation for one and one-half years which included performing 48 hours of community service.
In 1986 the State filed a petition to revoke appellant’s “suspended sentence.” The petition alleged that Ms. Bohlman had violated the terms imposed upon her by failing to make a restitution payment since July 1, 1986, and that the unpaid balance was $5,389.70. The petition was denied.
In 1989 the State filed a second petition to revoke alleging an unpaid balance of $4,520.00 and that the appellant should have paid $3,800.00 toward the restitution and had only paid $1,269.70, leaving $2,530.30 in arrears. Ms. Bohlman moved for a continuance, stating that she had paid $500 on March 20,1990, and that her employer had agreed to a wage assignment of $25.00 per week. The continuance was granted. The State later moved to withdraw the petition, and the court granted the motion.
The State filed a third petition to revoke on September 25, 1991, alleging that appellant had failed to make any payments since July 27, 1991. The unpaid balance at that time was $2,658.00. At the hearing on the petition, appellant moved to dismiss alleging that the State had failed to comply with
As her first point on appeal, appellant contends that the trial court did not have the authority to take any action with regard to her because the period of the deferred sentence had expired before the revocation petition was filed. She stands on
The court may revoke a suspension or probation subsequent to the expiration of the period of suspension or probation, provided the defendant is arrested for violation of suspension or probation, or a warrant is issued for his arrest for violationof suspension or probation, before expiration of the period.
The State argues that under
[i]f the court has suspended the imposition of sentence or placed a defendant on probation conditioned upon him making restitution or reparation and the defendant has not satisfactorily made all his payments when the probation period has ended, the court shall have the authority to continue to assert its jurisdiction over the recalcitrant defendant and extend the probation period as it deems necessary or revoke the defendant’s suspended sentence.
The appellant cites the 1988 Supplementary Commentary to § 5-4-302(f) in support of her argument.
Act 315 of 1985 added the last sentence of subsection (f). Presumably, revocation proceedings under§ 5-4-303(f) will be conducted pursuant to constraints imposed by§ 5-4-309 . See Supplementary Commentary to§ 5-4-309 . See also § 5-4-203 and the commentary thereto which recognize constitutional restrictions on imprisoning a defendant for failure to pay a fine. See also Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484 (1984) which cites Bearden v. Georgia, 461 U.S. 660 (1983) for the proposition that failure to pay a fine or restitution can be punished by imprisonment only where the State can prove that the probationer failed to make bona fide efforts to do so.
In interpreting the two statutes at issue, we adhere to the basic rule of statutory construction which gives effect to the intent of the legislature, making use of common sense. Sanders v. State, 310 Ark. 630, 839 S.W.2d 518 (1992). In interpreting statutes, the court gives words their usual and ordinary meaning. Gibsonv. City of Truman, 311 Ark. 561, 845 S.W.2d 515 (1993). Also, the commentary to a statue is a highly persuasive aid to construction, but it is not controlling over the clear language of the statute. See Lewis v. State, 267 Ark. 933, 591 S.W.2d 687 (1980); Mears, County Judge v. Ark. State Hospital, 265 Ark. 845, 581 S.W.2d 339 (1919); Patrick v. State, 265 Ark. 335, 576 S.W.2d 191 (1979); Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977).
In examining the actual wording of the statutes, we conclude that
Even if the two statutory provisions are in conflict with each other,
We find persuasive the State’s argument that a prosecutory should not be required to file a revocation petition prior to the expiration of the suspension or probationary period in cases involving unpaid restitution because it cannot be known until the period has fully expired whether the defendant has made restitution. A defendant could conceivably pay the full amount
It follows that the trial court did not err in extending Ms. Bohlman’s probationary period. Pursuant to
As her second point of appeal, Ms. Bohlman contends “the trial court erred in revoking her suspended sentence” because the written terms and conditions given to her as required by
If the court suspends the imposition of sentence on a defendant or places him on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he is being released.
This provision does not apply to Ms. Bohlman’s situation for the simple reason that her sentence was not revoked and she was never imprisoned. Her probation period was merely extended to allow her to pay the restitution at a rate she indicated that she could afford. In fact, the “Terms and Conditions of Suspended Sentence” and the Judgment both adequately explain the conditions of appellant’s suspension. She was informed in writing at the time of her sentence that she owed $5,789.70 as restitution. The State was not required to also notify her that the court retained jurisdiction until this amount was paid. The authority to enforce the terms of a suspended sentence is not itself a condition of the suspended sentence and is not required to be stated in writing. Therefore, this argument is meritless.
As her final point of appeal, Ms. Bohlman argues that the State failed to meet its burden of proof under
Affirmed.
Notes
The briefs refer to the sentencing procedure in this case as a “suspended sentence.” However, the judgment reflects that the trial court withheld imposition of sentence for five years.