Nix v. State

Charles L. NIX v. STATE of Arkansas

CA CR 95-254                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
                 Opinion delivered July 3, 1996


1.   Appeal & error -- arguments not raised at trial will not be
     addressed for first time on appeal -- parties may not change
     grounds for an objection on appeal. -- Arguments not raised at
     trial will not be addressed for the first time on appeal;
     parties cannot change the grounds for an objection on appeal
     but are bound on appeal by the scope and nature of the
     objections and arguments presented at trial.

2.   Appeal & error -- assignments of error not supported by
     convincing argument are not considered on appeal. --
     Assignments of error unsupported by convincing argument or
     authority are not considered on appeal.

3.   Evidence -- purpose of restitution to make victim whole as
     possible -- evidence sufficient to support trial court's order
     of restitution. -- Restitution is meant, as far as is
     practicable, to make the victim whole with respect to the
     financial injury suffered; here, there was evidence that the
     victim sustained damages in excess of $2500 as a result of the
     theft; consequently, the evidence was found sufficient to
     support the trial court's order of restitution.


4.   Criminal law -- testimony given upon which trial court based
     restitution amount for theft of property -- only reasonable
     monthly payments required. -- The appellant's assertion that
     the trial court failed to consider the amount he could afford
     to pay in determining the amount of restitution was without
     merit where the trial court heard testimony about the
     appellant's income and financial responsibilities, and the
     trial court's order noted that the appellant would have to
     make only reasonable monthly payments; a trial court retains
     jurisdiction beyond the term of a suspended or probated
     sentence until any fine, costs, or restitution is paid; thus,
     the term of the appellant's restitution payments might be
     longer than his thirty-six months probation. 


     Appeal from Perry Circuit Court; John Langston and David B.
Bogard, Judges; affirmed.
     Stuart Vess, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.

     James R. Cooper, Judge.*ADVREP*CA5*
                                  EN BANC



                                        CACR95-254

                                                          July 3, 1996


CHARLES L. NIX                          APPEAL FROM THE PERRY COUNTY
a/k/a BUBBA NIX                         CIRCUIT COURT
          APPELLANT                     [NO. CR-93-15]

VS.                                     HON. JOHN LANGSTON and
                                        HON. DAVID B. BOGARD

STATE OF ARKANSAS                       AFFIRMED
          APPELLEE







                          James R. Cooper, Judge.


     The appellant entered a negotiated plea of guilty to theft of
property, a Class C felony.  He was sentenced to three years
probation, fined $100, and ordered to pay court costs and
restitution.  The parties agreed to a separate restitution hearing
in which the trial court ordered restitution in the amount of
$19,500.00.  On appeal, the appellant argues that the trial court
erred in determining the amount of restitution.  We affirm.  
     The victim, Kelly Jones, testified that four of her horses
were stolen in July 1993.  She testified that two of the horses
were registered Arabians and the other two were registered quarter
horses.  She stated that all the horses had been professionally
trained and were show horses.  Ms. Jones testified that one of the
Arabians was a black bay mare worth $5,000.  The other Arabian was
a white stallion also valued at $5,000.  Ms. Jones testified that
her parents had given her one of the quarter horses which was a
high point show mare.  She testified that her parents paid $2,950
for the horse and she estimated its value at $3,500.  Ms. Jones
further testified that the fourth horse was a three-year-old
palomino filly out of the highest point palomino in the American
Quarter Horse Association.  She stated that she borrowed $7,000
from her father to purchase the horse and had been offered $10,000
for it.  The victim's father confirmed that he loaned her $7,000
for the purchase of the palomino quarter horse.  Ms. Jones further
testified that she also lost $1,750 in stud fees.  
     Ms. Jones' ex-husband testified that the horses were worth
less than the amounts testified to by Ms. Jones. The appellant
testified that he had sold the stolen horses for $1,600.  He
further testified that he made approximately $1,500 to $1,700 a
month which was used to support himself, his wife, and three
children.  
     In determining the amount of restitution, the trial court
allowed $3,000 for each Arabian horse, $3,500 for one quarter horse
and $10,000 for the second quarter horse.  The appellant argues
that it was error to consider the victim's testimony to the amount
of restitution.  However, this argument was not made to the trial
court.  Our law is well established that arguments not raised at
trial will not be addressed for the first time on appeal, and that
parties cannot change the grounds for an objection on appeal, but
are bound on appeal by the scope and nature of the objections and
arguments presented at trial.  Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995).
     Theft of property is a Class C felony if the value of the
property is less than $2500 but more than $200.  Ark. Code Ann  5-
36-103 (b)(2)(A) (Repl. 1993).  The appellant contends that the
amount of restitution could not exceed $2500 because he entered a
plea of guilty to a Class C felony theft of property.  However, the
appellant has not cited any authority to support this argument. 
Assignments of error unsupported by convincing argument or
authority are not considered on appeal.  Scroggins v. State, 312
Ark. 106, 848 S.W.2d 400 (1993).  Moreover, restitution is meant,
as far as is practicable, to make the victim whole with respect to
the financial injury suffered.  See Ark. Code Ann.  16-90-301 to
-306 (1987).   Here, there was evidence that the victim sustained
damages in excess of $2500 as a result of the theft; consequently,
we hold that the evidence is sufficient to support the trial
court's order of restitution.
     The appellant also asserts that the trial court failed to
consider the amount he could afford to pay in determining the
amount of restitution.  We disagree.  The trial court heard
testimony about the appellant's income and financial
responsibilities.  The trial court's order noted that the appellant
would have to make only reasonable monthly payments.  We note that
a trial court retains jurisdiction beyond the term of a suspended
or probated sentence until any fine, costs, or restitution is paid. 
See Basura v. City of Springdale, 47 Ark. App. 66, 884 S.W.2d 629
(1994).  Thus, the term of the appellant's restitution payments may
be longer than his thirty-six months probation.  Accordingly, we
find no error and affirm.
     Affirmed.
     Stroud, Griffen, Rogers, and Robbins, JJ., agree.
     Mayfield, J., dissents.

*ADVREP*CA5-A*
                             EN BANC



                                        CACR 95-254


                                             JULY 3, 1996


CHARLES L. NIX                     AN APPEAL FROM THE PERRY
a/k/a BUBBA NIX                    COUNTY CIRCUIT COURT
               APPELLANT           [NO. CR-93-15]

VS.                                HON. JOHN LANGSTON and      
                                   HON. DAVID B. BOGARD

STATE OF ARKANSAS                  DISSENTING OPINION

               APPELLEE



                     Melvin Mayfield, Judge.


     I cannot agree with the majority opinion in this case.      
     The appellant entered a plea of guilty to the charge of theft
of property having a value in excess of $200, and was sentenced to
three years probation, and restitution in an amount to be
determined pursuant to a hearing.  There was no agreement as to the
amount of restitution to be paid, and after a hearing the trial
court ordered restitution in the amount of $19,500.
     Ark. Code Ann.  16-90-301 (1987) provides:
          The General Assembly recognizes that many innocent
     persons suffer injury, death, property damage, and
     resultant financial hardship because of crimes committed
     in this state and that there is a genuine need in this
     state to establish a method whereby the responsible
     offender, as far as practicable, may be required to make
     restitution to his victim so as to make that victim whole
     with respect to the financial injury suffered.  [Emphasis
     added.]

And Ark. Code Ann.  16-90-303(a) (1987) (now repealed) provides:

          If a defendant pleads guilty or is found guilty of
     a criminal offense, the trial court of criminal
     jurisdiction shall, in addition to imposition of
     sentence, enter a monetary judgment against the defendant
     in an amount of restitution or reparation from the
     offender to the victim that will totally or partially
     compensate the victim for his personal injury or loss or
     damage to his property caused by the criminal act of the
     offender.  [Emphasis added.]

     The appellant testified that he supports five people including
three children between the ages of five and nine; that his wife
does not have a job; and that he makes approximately $1,500 to
$1,700 per month.  Based on this evidence I do not believe it is
practicable for appellant to pay $19,500 during the term of his
probation.  
     It is true, as the majority notes, that a trial court retains
jurisdiction beyond the terms of a suspended sentence until any
restitution is paid, and it is possible that the trial court might
extend appellant's restitution payments for longer than his
probation.  However, it is equally possible that the trial court
might revoke appellant's probation, and I am unwilling to speculate
that the "term of appellant's restitution payments may be longer
than his thirty-six months probation."
      Moreover, under our statutes, the trial court may order an
amount of restitution that will only partially compensate the
victim for his personal injury or loss or damage to his property
caused by the criminal act of the offender.
     Here, Ms. Jones testified that the value of the horses was
between $19,500 and $22,500, but except for the palomino filly
offered no evidence as to how she arrived at that value.  We do not
know whether that value represents the amount the horses would have
brought in a sale between a willing buyer and seller or some other
"value" Ms. Jones placed upon the horses.  And, although Ms. Jones
said she had documents to show what was paid for the horses, she
did not bring them to the hearing.  Also, there was evidence that
when appellant sold the horses he received a check for only $1,600. 
     At the hearing Ms. Jones' ex-husband testified that the black
Arabian was purchased for $1,000 and was given to Mrs. Jones by his
father; the white Arabian was a foal of the black Arabian and was
worth about $500; one quarter horse was purchased for $3,500
several years before; and the second quarter horse was purchased
for $2,500.  
     These amounts total $7,500, and I would reduce the restitution
in this case to that amount.  Not only do I think that is the
highest amount justified by the evidence, I think the evidence also
indicates that the amount set by the trial court will either be a
disappointment to the victim (because it will never be paid or will
be paid in small amounts over a long period of years) or the
appellant will be pushed into other crime in an attempt to pay the
large amount fixed as restitution for this one.        
     Therefore, I dissent.