Opinion No. ( 1995 )


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  • The Honorable Mark Stodola Prosecuting Attorney Sixth Judicial District P.O. Box 1979 Little Rock, AR 72203

    Dear Mr. Stodola:

    This is in response to your request for an opinion concerning the operation of two restitution statutes: A.C.A. §§ 16-90-309, -310 and5-4-205. Your questions, somewhat restated, are as follows:

    1. Are the requirements concerning when restitution can be ordered in A.C.A. §§ 16-90-309 and -310 in conflict with those in § 5-4-205?

    2. When a defendant is sentenced to imprisonment for theft of public funds, must the defendant pay restitution even when a determination has been made that the defendant cannot pay restitution due to imprisonment?

    3. Do A.C.A. §§ 16-90-309 and -310 repeal the requirement of § 5-4-205(c) that restitution be a condition of suspension or probation when either is ordered under § 5-4-205(c)?

    The answer to the first question is, in my opinion, "no." Section 5-4-205 provides that restitution may be ordered as provided by that section as part of the disposition of an offender for any criminal conviction. Sections 16-90-309 and -310, on the other hand, require that the court order restitution as part of the sentence of a defendant guilty ofparticular kinds of crimes, viz., "theft or any other offense affecting property held by or belonging to the state or any political subdivision thereof." Id. at § 16-90-309(a). Section 5-4-205 is part of the criminal code, while sections 16-90-309 and -310 are part of the judicial code. It is my opinion that the former is a general statute allowing restitution in criminal cases, while the latter is a specific statute requiring restitution in certain criminal cases, and that no conflict exists between them.

    The answer to your second question is, in my opinion, "yes." A defendant must be ordered to pay restitution in such a case under A.C.A. §16-90-309, and the court must order a lien on the defendant's property under A.C.A. § 16-90-310. Any negotiation, agreement, or finding to the contrary that might be allowed under the permissible language of A.C.A. §§ 5-4-205(b), (c)(2) or 303(f) is not available for the specific restitution and lien orders required by the mandatory language of §§16-90-309 and -310.

    The answer to your third question is, in my opinion, "no." When probation or conditional release is ordered and, pursuant to A.C.A. § 5-4-205, restitution also has been ordered, § 5-4-205(c) requires such restitution be made a condition of the probation or release. The specific restitution orders required by A.C.A. §§ 16-90-309 and -310 do not change the requirement that where probation or other release is ordered that restitution under § 5-4-205 be made a condition of the probation or release.

    Further, in my opinion, if probation or other release is ordered as part of a sentence along with restitution under A.C.A. §§ 16-90-309 and -310, the condition requirement of A.C.A. § 5-4-205(c) need not be made part of the probation or release because the restitution under A.C.A. §§ 16-90-309 and -310 will not have been ordered under A.C.A. § 5-4-205 which speaks to "restitution ordered under this section." However, I find nothing in A.C.A. §§ 16-90-309 and -310 that would preclude making restitution under those provisions a condition of probation or other release.1 And, in fact, the mandatory language of those provisions would counsel in favor of such conditioning where probation or conditional release is ordered.

    The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General David R. Raupp.

    Sincerely,

    WINSTON BRYANT Attorney General

    WB:DRR/cyh

    1 A.C.A. § 5-4-303(c)(8) (Repl. 1993) makes restitution a permissible condition of probation generally. The Arkansas Supreme Court has said, however, that a sentence, including restitution, may not extend beyond the maximum sentence allowed by law. See Brimer v. State, 295 Ark. 20,746 S.W.2d 370 (1988).

Document Info

Judges: WINSTON BRYANT, Attorney General

Filed Date: 1/13/1995

Precedential Status: Precedential

Modified Date: 7/5/2016