¶1dissenting. The majority opinion clearly and correctly states that the original plea by appellant was taken under advisement on February 24,1984. The exact words of the trial court were, “ [T] he plea of guilty of theft by deception be and is hereby taken under advisement by the Court for the period of (7) year(s), and upon recommendation of the prosecuting attorney, and conditioned upon the following .... “One of the conditions was that the appellant pay restitution at the rate of $1,000 per month.”
¶2The appellant did not pay the scheduled payments in full and the state filed a motion to revoke the advisory sentence. On July 9, 1985, a hearing was held and the court announced that “five and one half (5 Vi) years of the seven (7) year sentence to the Arkansas Department of Correction heretofore deferred be pronounced upon the defendant.”
¶3Both this Court and the trial court have changed horses in the middle of the stream. The appellant was not sentenced to any term in the Department of Corrections. Sentence was unequivocally and unmistakably deferred — not pronounced. How can a court revoke a sentence which has not been imposed? The majority attempts to wade the illegal sentence issue on the grounds that it was not objected to below. There was no sentence to object to until the present sentence was pronounced. The appellant fought the revocation as hard as he could in the trial court then lodged this appeal. How could he object more?
¶4The factual issues are not stated as fully as I would like. Therefore, I will enumerate additional facts which I think should be considered. From the date of the plea, February 24,1984, until the end of the year, the appellant earned (according to his Form 1099) $8,211.75 and paid $5,811.92 into the trial court as restitution. The balance of his wages, $2,399.83 as paid to other creditors. Appellant did not receive any of these funds. During 1985, up to the time of the hearing, the appellant earned $1,500.00 and $900.00 of it went directly to the restitution fund and the balance, except for $100, was garnished by another creditor. Between the time of the agreement to pay $1,000 per month and the date of the unauthorized revocation, the appellant earned $9,711.75 and all of it except $100 went to creditors, including the restitution fund.
¶5It is true appellant was unemployed during part of 1985. However, his former employer supported appellant’s statement that the unemployment was due to lack of business and not by fault of the appellant. Appellant testified that he had been trying to find work in the automobile sales field but had been unsuccessful. He was reemployed by his previous employer at the time of the hearing and it was this employment which paid him $ 1,500 to 1985.
¶6During part of the appellant’s unemployment he lived in a house, which had a swimming pool. His wife paid part of the $475 monthly rent and a relative, who also lived in the house, paid the balance of the rent. Appellant had two Cadillacs when he pled guilty but has since disposed of them for the balance owed on them. His wife purchased another automobile in 1984, but it was on credit and she used it in her business. The majority opinion erroneously indicates that the vehicle was transferred to the appellant.
¶7On page four of the slip opinion the court correctly sets forth the controlling Arkansas Statute relevant to revocation of suspension, which did not occur in this case. The Statutory requirement is that there be an inexcusable failure by the defendant to pay what he has agreed to pay. Otherwise such revocation would amount to imprisonment for debt. Bearden v. Georgia, 461 U.S. 660 (1983). Also, see Tate v. Short, 401 U.S. 395 (1971). The appellant herein may have entered into the agreement voluntarily but the prosecuting attorney and the court were parties to the agreement.
¶8The remarks and finding of the court clearly reveal this revocation was not based upon the facts and the law. The trial court stated in part as follows:
All right, gentlemen, let me start by saying this Court is not in the collection business, the civil debt collection business. It never has been; I do not intend to ever put it in that position at this time.
Now, as you gentlemen know, it has been the position of this court that nonpayment of restitution is looked at very seriously and very critically by this court ....
[I] guess what I am trying to say is, it is apparent to me, at this juncture of the case, Mr. Hoffman overstated his position or ability when he entered his plea. He had a job and he has not incurred more debts, he says.
I think it is simply a case of perhaps attempting to bore with too big of an auger, continuing to live in a lifestyle he has enjoyed, and perhaps it was just too high for his present situation, and he continued in this manner until the wheels just fell off. It is just as simple as that.
[T]here was no way under the sun that he was going to be able to make $1,000 restitution payments back when he entered the plea in ’84, and I think he knew it or should have known it.
¶9The court went on to say that appellant was unemployed and had been unable to find a job in the car sales business but that there must be other jobs out there he could get. The court further allowed that it was a hopeless statement from the beginning and restitution was like spitting in the wind.
¶10It is my opinion the court should have allowed the appellant an opportunity to make payments within his range of ability. If the court knew from the beginning that the payment schedule could not be kept another one should have been approved. In my opinion there has been absolutely no showing that appellant willfully refused to pay his obligation under the agreement. Now, nobody will receive anything and the state will be out much time and expense in keeping the appellant. There are no winners in this case — everyone, including the taxpayers, loses.
¶11I would reverse and remand to the trial court for consideration of alternatives to the imprisonment of the appellant.