Jordan v. State, CR
| Decision Date | 27 January 1997 |
| Docket Number | No. CR,CR |
| Citation | 327 Ark. 117,939 S.W.2d 255 |
| Parties | Timothy Bryan JORDAN, Appellant, v. STATE of Arkansas, Appellee. 96-871. |
| Court | Arkansas Supreme Court |
Maxie G. Kizer, Pine Bluff, for appellant.
Winston Bryant, Attorney General, Brad Newman, Assistant Attorney General, Little Rock, for appellee.
The primary issue in this case is whether the trial court's order revoking probation and sentencing appellant to serve thirty-five years in prison meets the test of fundamental fairness required under the Due Process Clause when there have been no findings of fact upon which to base a judicial determination that the failure to pay court-ordered restitution was a willful refusal to comply with the court order, and not the result of appellant's inability to pay. We have concluded that the due process requirement of fundamental fairness has not been met, and the case is reversed and remanded.
The appellant, Timothy Bryan Jordan, was charged with crimes of residential burglary, theft of property, and two counts of theft by receiving. Based upon a plea bargain with the State, Jordan entered a guilty plea to the four counts on March 21, 1995. The trial court deferred further proceedings and placed Jordan on probation for five years conditioned in part on the payment of $7,312.50 in restitution to Mr. Alfred Helvey. In agreeing to the plea bargain, the State recognized that its interest in punishment and deterrence did not require imprisonment, but would be satisfied by probation and restitution. The probation order states, "If the defendant successfully completes his period of probation this record will be expunged on application therefor."
Jordan did not report to his probation officer and failed to make any payments, and the State petitioned to revoke probation. A hearing on the State's motion to revoke was held on August 9. At this hearing, Jordan asserted that he could catch up with the required restitution by paying $500 a month, based upon earnings of $200 to $300 per week from a lawn service company. He testified that his living expenses were only $30 to $35 a week. The hearing was adjourned and reconvened on August 25.
By the August 25 hearing, Jordan was no longer working for the lawn service company, but his father testified that he would help him find a job. The trial court advised Jordan that, notwithstanding the urging by the State and the probation officer that the probation be revoked, "This court is far more interested in seeing that Mr. Helvey gets his money back than he is in sentencing you in the Department of Correction." The trial court then informed Jordan's father that the young man would need a lot of support from his father, his grandmother, and other friends to meet the restitution schedule of $500.00 per month for seven consecutive months, commencing in September, followed by payments of $100 per month until the restitution amount was paid.
The court next convened on December 11 to review progress made toward restitution. Only one payment of $500 had been made, with the help of Jordan's grandmother. Jordan claimed that he had hurt his leg, had lost his job, and had been out of work for three months. He said that he had just gotten some equipment to begin painting cars. The court said, "I don't think you're going to make it, Mr. Jordan ... I think you've got more than you can say grace over ... You need to go on down." Jordan's probation officer testified that he had been reporting as required by the order, that he had not tested positive for drugs, that he had no outstanding charges against him, and that his only violation was nonpayment of restitution, which was then in arrears by $1,000.
Jordan was returned to jail and on January 9, 1996, the final hearing was held. The trial court opened the hearing by advising him, Mr. Helvey, the victim, was then called as a witness and urged the court to impose the maximum sentence. Jordan then pleaded with the court for another chance, stating that he might be able to get a loan of $1500 to $2000 to apply to restitution, and the court replied that if he gets the loan, "we might reconsider what we're going to do right now, Mr. Jordan." The trial judge then revoked probation and sentenced Jordan to three ten-year terms and one five-year term in the Arkansas Department of Correction, with the terms to run consecutively.
In Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the Supreme Court dealt with the issue whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant's probation for failure to pay a fine and restitution. In opening its discussion of this issue, the Court states:
Its resolution involves a delicate balance between the acceptability, and indeed wisdom, of considering all relevant factors when determining an appropriate sentence for an individual and the impermissibility of imprisoning a defendant solely because of his lack of financial resources. We conclude that the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist.
Id. at 661-62, 103 S.Ct. at 2067.
Reviewing testimony from the probation revocation hearing in Bearden, the Supreme Court observed:
While the sentencing court commented on the availability of odd jobs such as lawn mowing, it made no finding that the petitioner had not made sufficient bona fide efforts to find work, and the record as it presently stands would not justify such a finding.... The State argues that the sentencing court determined that the petitioner was no longer a good probation risk. In the absence of a determination that the petitioner did not make sufficient bona fide efforts to pay or to obtain employment in order to pay, we cannot read the opinion of the sentencing court as...
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