William R. Tubbs v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

WILLIAM R. TUBBS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-855

January 9, 2002

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT

[NO. CR-95-655]

HON. JAMES R. MARSCHEWSKI,

CIRCUIT JUDGE

AFFIRMED

The appellant pled guilty to several criminal charges and imposition of sentence was suspended with various conditions, including the condition that he pay restitution. The State filed a petition to revoke alleging that he violated the conditions of his suspended sentence by failing to pay as ordered. After a hearing, the trial court found that appellant had violated the conditions of his suspended sentence by willfully failing to pay restitution, revoked his probation, and sentenced him to serve three years in the Arkansas Department of Correction. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in revoking his suspended sentence because the evidence was insufficient to show that he violated the terms and conditions thereof. We find no error, and we affirm.

On appellate review of a revocation proceeding, we will affirm the trial court's decision unless it is clearly against the preponderance of the evidence. Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990). At the revocation hearing, the State put on evidence to show that appellant was ordered to pay $2,176.29 in restitution, but had only made three payments totaling $235.00 in five years. Appellant testified that he was imprisoned in Oklahoma from 1996 to 1998. The record also indicates that he was in jail in Arkansas in August 1998, November 1998, March 1999, May 1999, September 1999, November 2000, and February 2001. These jailings were for a broad spectrum of offenses, such as shoplifting, driving without license tags, failure to register a vehicle, and obstruction of governmental operations. Nevertheless, appellant stated that he was steadily employed for nine months after his release from prison in Oklahoma; that he made approximately $800.00 per week during that time; that cash was short because of the plethora of fines he was obliged to pay to various courts; that he nevertheless earmarked money for restitution payments; and that he gave his girlfriend money to make the restitution payments, but that she failed to do so.

It is true that, if the State determines that restitution is the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay. Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997) (quoting Tate v. Short, 401 U.S. 395 (1971)). However, a defendant's failure to make bona fide efforts to seek employment or to borrow money to pay restitution may justify imprisonment, and the question on appeal is whether a finding of such lack of effort is clearly erroneous. Jordanv. State, supra; Baldridge v. State, supra. Here appellant did not deny he failed to pay and testified that he was in fact able to pay for a considerable period of time, but that he gave the money to his girlfriend who failed to remit the money he gave her as he asked her to do. This alone would justify revocation for failure to pay. See Robinson v. State, 29 Ark. App. 17, 775 S.W.2d 916 (1989). In light of this testimony, the evidence that appellant was working for several months with minimal living expenses, and that he spent $1,100 on a car during this time, we cannot say that the trial court erred in finding that he wilfully failed to pay restitution. Finally, with regard to appellant's attribution of much of his difficulty in paying restitution to the fact that he owed so many fines to so many criminal courts, we note that we are unwilling to assume that such financial difficulties are matters beyond a person's control.

Affirmed.

Jennings and Vaught, JJ., agree.