Summary
In Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977), our supreme court made it clear we should require the appellant to show the court's finding was clearly against the preponderance of the evidence.
Summary of this case from Needham v. StateOpinion
No. CR 77-185
Opinion delivered December 5, 1977
1. CRIMINAL LAW — PROBATION, CONDITIONS OF — RESTITUTION MAY BE REQUIRED. — As a condition of probation, the trial court is authorized to require the defendant to make restitution to the aggrieved party, in an amount he can afford to pay, for the actual loss or damage caused by his offense. [Ark. Stat. Ann. 41-1203(2)(h) (Crim. Code 1976).] 2. CRIMINAL LAW — REVOCATION OF PROBATION — WHEN AUTHORIZED. — A court may revoke the probation of a defendant, enter a judgment of conviction, and impose any sentence that may have been imposed originally for the offense if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with the condition of his suspension or probation. [Ark. Stat. Ann. 41-1208(4) and (6) (Crim. Code 1976).] 3. CRIMINAL LAW — REVOCATION OF PROBATION — NOT AGAINST PREPONDERANCE OF EVIDENCE. — Where appellant was placed on five years' probation and was ordered to pay restitution for the property he had stolen at the rate of $150.00 per month but fell in arrears several months, the court's finding that appellant had inexcusably failed to comply with the condition of his probation is not clearly against the preponderance of the evidence where it was shown that appellant accepted the amount imposed without objection, that he earned $115 per week, plus overtime, and that he had paid $500 to a bonding company — to get his car back instead of making the restitution payments, despite a warning by the court at a prior hearing that the payments must be made. 4. APPEAL ERROR — REVOCATION PROCEEDING CHANGE IN PROOF REQUIRED TO OVERTURN TRIAL COURT'S ACTION. — Heretofore, in a revocation proceeding, the Supreme Court has required the appellant to demonstrate the court abused its discretion, but, hereafter, the court will require appellant to show the court's finding was clearly against the preponderance of the evidence.
Appeal from Sebastian Circuit Court, Fort Smith District, John G. Holland, Judge; affirmed.
Robert S. Blatt, for appellant.
Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
Appellant was placed on five years' probation pursuant to his plea of nolo contendere to a charge of theft of property. As a condition of his probation, he was ordered to pay restitution in the amount of $3,266, which was the value of the cash and merchandise allegedly stolen, at the rate of $150 per month. Upon appellant's failure to make the monthly payments, the trial court found that appellant had violated his probation, set it aside, found him guilty of theft of property, and sentenced him to three years' imprisonment. On appeal, appellant asserts, through his court appointed counsel, that the trial court abused its discretion in revoking his probation because the state failed to sustain its burden of proving that the nonpayment of restitution was willful or in bad faith and that he had the ability to pay.
As a condition of probation, the trial court is authorized to require the defendant to make restitution to the aggrieved party, "in an amount he can afford to pay, for the actual loss or damage caused by his offense." Ark. Crim. Code 41-1203 (2)(h) (1976). A court may revoke the probation, enter a judgment of conviction, and impose any sentence that may have been imposed originally for the offense "if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation." Ark. Crim. Code 41-1208(4) and (6) (1976).
At the time of his plea, appellant made no objection to the amount set as restitution and after reading the Statement of the Court Respecting Probation in the presence of his attorney, he signed it, acknowledging that he understood it, and accepted all conditions imposed by the court. It is undisputed that appellant, after making the first two monthly payments, had failed for four consecutive months to make the required restitution payments before the first revocation hearing. Appellant testified that he was unable to make the payments because he had a wife and three children to support; had to pay other bond fee expenses and had been waiting to sec what was going to happen on another criminal charge; he cleared about $115 a week and would "like to have 60 days to get it caught back up where I could afford to make my $150 a month payments. . . .;" sixty days "would help me quite a bit" because "[t]hey are getting ready to start a big project and I'm going to get about 32 hours a week overtime." The court postponed a decision to "see what Mr. Pearson has done. . .[o]r whether he has done anything." The court stated to appellant, "you give the appearance of just really not caring until you get in a crack so we'll just see what the next four weeks bring. . . . "
Approximately a month and a half later, another hearing was held. Appellant admitted failing to make any payments on the arrearage. In the interval two other payments became delinquent. Appellant stated that he had been trying to sell his car to make the payments, but he had to pay $500 to the bonding company to get his car back so he could sell it. Appellant's wife testified that they were "going to pay the $500 to the court here . . . but since they had postponed it we had took the $500 to pay the bonding company over here so we could sell this car and make up all these payments. She stated that she had gotten the car back a couple of weeks before and was using the car now `just to show it." Further she testified that there were prospective buyers who were "just trying to get the money up."
Heretofore, in a revocation proceeding, we have required the appellant to demonstrate the court abused its discretion. Hereafter, we require appellant to show the court's finding was clearly against the preponderance of the evidence.
In the circumstances we cannot say that the court's finding that appellant had inexcusably failed to comply with the condition of his probation is clearly against the preponderance of the evidence.
Affirmed.
We agree: HARRIS, C.J., and GEORGE ROSE SMITH and HICKMAN, JJ.