FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-12-318,
17CR-13-138] HONORABLE GARY COTTRELL, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge
Dalana Phillips challenges the sentencing order of the
Crawford County Circuit Court that revoked her probation,
sentenced her to the Arkansas Department of Correction, and
ordered her to pay restitution. Her sole argument on appeal
is that the circuit court erred in ordering restitution
following her revocation, and the State concedes error on
this point. We reverse and remand.
procedural history of this matter is straightforward. In
2013, Phillips entered a guilty plea to one count of
commercial burglary (Count I), one count of theft of property
(Count II), one count of theft by receiving (Count III), and
one count of possession of drug paraphernalia (Count IV). She
was sentenced to thirty-six months' probation. Her
conditions of probation included the terms that she must not
commit a criminal offense punishable by imprisonment and that
she pay fines, fees, and court costs.
in 2013, the State petitioned to revoke Phillips's
probation. Phillips pleaded guilty to the petition and was
sentenced to two years in a regional correctional facility
(RCF) plus ten years' suspended imposition of sentence
(SIS) on Count I, a concurrent two-year RCF sentence plus
eight years' SIS on Count II, and concurrent six
years' SIS on Counts III and IV. Phillips was released
from RCF in October 2015.
January 2016, the State filed another petition to revoke,
alleging that Phillips had passed a forged check at Wal-Mart
and had failed since August 2015 to make payments toward the
fines, fees, and court costs that had been ordered as part of
her original probation. The circuit court found that the
State had proved by a preponderance of the evidence that
Phillips had violated the terms and conditions of her SIS by
forging and passing the check and by failing to keep up with
her court-ordered payments. The court therefore revoked
Phillips's SIS and sentenced her to a term of years in
the Arkansas Department of Correction, followed by another
period of SIS.
addition to the prison sentence, however, the circuit court
also ordered Phillips to pay $447.11 in restitution within
ninety days of her release from prison. Phillips objected
to the order of restitution, but the court nonetheless
included restitution as part of her sentence. Phillips filed
a timely notice of appeal, and she now argues that the
circuit court erred in ordering her to pay restitution based
on the forged check. We agree.
instant case, the circuit court's finding by a
preponderance of the evidence that Phillips had passed the
forged check was sufficient to revoke her SIS. See,
e.g., Daffron v. State, 2016 Ark.App. 485, 505
S.W.3d 209 (standard of review for revoking SIS). The court
erred, however, in sentencing her to pay restitution.
Arkansas Code Annotated section 5-4-205(a)(1) provides that
"[a] defendant who is found guilty or who enters a plea
of guilty or nolo contendere to an offense may be ordered to
pay restitution." Restitution is thus, by statute,
connected with an adjudication of guilt. This makes sense
because the goal of restitution is to make a victim whole
with respect to the financial injury suffered as a result of
the crime committed. This court has held that it is error for
a court to order a defendant to pay restitution for offenses
with which he or she has not been charged or to which he or
she did not plead guilty or no contest. Bogard v.
State, 2014 Ark.App. 700, 450 S.W.3d 690; Simmons v.
State, 90 Ark.App. 273, 205 S.W.3d 194 (2005);
Fortson v. State, 66 Ark.App. 225, 989 S.W.2d 553
(1999). In Simmons, we reversed a restitution order,
noting that "even a preponderance standard does not
allow the State . . . to allege that the victim is entitled
to recover based on additional conduct [with] which the
defendant has not been charged. If the State believes that it
can prove appellant stole the additional items, it must
first obtain a conviction related to those charges, and then
seek restitution based on that conviction."
Simmons, 90 Ark.App. at 279, 205 S.W.3d at 198
Arkansas, sentencing is entirely a matter of statute.
Valencia v. State, 2016 Ark.App. 176 (citing
Walden v. State, 2014 Ark. 193, 433 S.W.3d 864).
Sentencing may not be other than in accordance with the
statute in effect at the time of the commission of the crime.
Heard v. State, 2014 Ark.App. 674. When the law does
not authorize the particular sentence pronounced by the trial
court, that sentence is unauthorized and illegal, and the
case must be reversed and remanded. Id. Here, the
sentence of restitution was not authorized. The circuit court
therefore erred in ordering Phillips to pay restitution. As
noted above, the State concedes error in this case. We
therefore reverse the circuit court's order of
restitution and remand for entry of a sentencing order
consistent with this opinion.