Ellis v. State , 36 Ark. App. 219 ( 1991 )

John E. Jennings, Judge.

On May 20,1987, Ann Ellis pled guilty to a charge of violating the Arkansas Hot Check Law, a class C felony, in Sebastian County Circuit Court. The court suspended imposition of sentence for a period of five years. The judgment of the court states, in part:

IT IS, THEREFORE, BY THE COURT CONSIDERED, ORDERED, AND ADJUDGED that the Court withholds imposition of sentence for a period of five (5) years on condition of good behavior and other written terms and conditions as set out by the Court, including the following:

That the Defendant is to pay restitution in the amount of $1,333.25, to the Sebastian County Prosecuting Attorney’s office, payable at the rate of $100.00 per month beginning July 1, 1987, and on the same day each month thereafter until paid in full.

In August 1989, the State filed a petition to revoke, alleging that the defendant had paid less than $450.00 towards the restitution ordered since the date of the plea and asking that Ellis be directed to show cause why her suspended sentence should not be revoked.

On August 1, 1990, the circuit court held a hearing on the petition to revoke. Ms. Ellis’ payment record was introduced without objection. It showed that she had paid, by the time of the hearing, a total of some $950.00 toward the ordered restitution since the date of the plea.

Ms. Ellis testified that she was currently employed and working a forty-hour week at $5.10 per hour. She testified that she had a high school diploma and two semesters of college. She testified that she owned a car which she was living in, and that she could not afford an apartment. She testified that she had had various medical problems and had been unemployed for several weeks before obtaining her current job. She admitted that she had paid very little during the year 1988, although she admitted she was employed during that time. Finally, she admitted that not making the payments was her fault and said that she “did not carry forward on my obligation.”

The trial judge declined to revoke the defendant’s suspended sentence, but found her in contempt and sentenced her to ten days in the county jail.

Appellant’s first point for appeal is that “the trial court imposed an illegal sentence in finding the appellant in contempt.” We have very recently decided this issue adversely to appellant in Finn v. State, 36 Ark. App. 89, 819 S.W.2d 25 (1991). In connection with this argument, the defendant also argues that “there was no notification of the contempt proceeding” and “there was no indication that the judgment . . . would be construed as a process or order under the contempt statute.” These arguments were not presented to the trial court and we do not consider issues raised for the first time on appeal. Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989); Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). There are sound reasons for the rule. It is unfair to the trial court to reverse on a ground that no one even suggested might be error. It is unfair to the opposing party, who might have met the argument not made below. Finally, it does not comport with the concept of an orderly and efficient method of administration of justice. Even issues of constitutional dimension are waived unless raised in the trial court. See Finn v. State, supra.

It is not difficult to imagine why these issues were not raised below. The defendant was substantially behind in paying the restitution previously ordered and admitted that it was her fault that it had not been paid. The trial court could have revoked her suspended sentence and sentenced her to a term of years in the Department of Correction. Had the trial court been presented with and agreed with the arguments Ellis now makes, revocation may well have been the outcome.

The appellant also argues that the evidence is insufficient to support the action taken by the trial court. In a revocation proceeding the state has the burden of proving a violation of the court’s order by a preponderance of the evidence. Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986). If probation is revoked, our standard of review requires that the trial judge’s decision be affirmed unless clearly against a preponderance of the evidence. Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986). Here, however, appellant’s suspended sentence was not revoked; rather, she was found in criminal contempt of the court’s order. In such a case the burden of proof is beyond a reasonable doubt. Jolly v. Jolly, 290 Ark. 352, 719 S.W.2d 430 (1986). On appeal, we consider the evidence in the light most favorable to the trial judge’s decision to determine whether there is substantial evidence to support his finding. Arkansas Dept. of Human Services v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991); Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988). In the case at bar we are satisfied that the trial court’s finding of contempt is supported by substantial evidence.

Affirmed.

Cooper and Mayfield, JJ., dissent.