Pearson v. State, CR77-185
| Decision Date | 05 December 1977 |
| Docket Number | No. CR77-185,No. 2,CR77-185,2 |
| Citation | 558 S.W.2d 149,262 Ark. 513 |
| Parties | Rick PEARSON, Appellant, v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Robert S. Blatt, Fort Smith, for appellant.
Bill Clinton, Atty. Gen. by Jackson Jones, Asst. Atty. Gen., Little Rock, 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 see 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...
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People v. Rodriguez
...Rules of Crim.Proc., Rule 27.7, subd. (c); State v. LeMatty (1979) 121 Ariz. 333, 590 P.2d 449, 451-452; Pearson v. State (1977) 262 Ark. 513, 558 S.W.2d 149, 150; Ivey v. State (Fla.Dist.Ct.App.1975) 308 So.2d 565, 567; State v. Hughes (Iowa 1972) 200 N.W.2d 559, 563; Jaynes v. State (Ind.......
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...the argument. Only a clear preponderance of the evidence must be established to justify the revocation of probation. Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977). In the instant case, marijuana was found in two places in the apartment where appellant lived: four plastic bags were f......
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Selph v. State, CR78-53
...he has the burden of showing that the trial court's finding was clearly against the preponderance of the evidence. See Pearson v. State, 262 Ark. 513, 558 S.W.2d 149. Appellant first argues that the evidence, including his incriminating statements, is insufficient to show a burglary committ......
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Hoffman v. State, CR
...they are clearly against a preponderance of the evidence. Cavin v. State, 11 Ark.App. 294, 669 S.W.2d 508 (1984); Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977). A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the test......