On February 24, 1984, the appellant offered a plea of guilty to theft by deception which was taken under advisement by the trial court for a period of seven years conditioned upon the following: good behavior, payment of court costs and restitution in the amount of $57,040.03 payable in $1,000.00 monthly installments. On April 1,1985, the state filed a motion for revocation of the advisory sentence because of the appellant’s failure to make all of the scheduled restitution payments. On July 9, 1985, the court conducted a hearing at which time it found the appellant had violated the terms and conditions of the court judgment of February 24th. The court ordered that five and one-half years of the seven year sentence to the Arkansas Department of Correction, theretofore deferred, be pronounced upon the appellant. It is from that decision that this appeal is brought. Our jurisdiction is pursuant to Sup. Ct. R. 29 (l)(c), as we are being asked to interpret an act of the General Assembly.
The appellant claims that the trial court’s finding that he failed to pay restitution as ordered by the court, and that said failure was willful and without good cause, is clearly against the preponderance of the evidence, and that the revocation violated his right to equal protection.
The evidence demonstrates that when appellant entered his plea of guilty on February 24, he and his attorney set up a payment schedule for restitution of $1,000.00 per month, that figure coming from his calculations and that of his attorney. It was acknowledged by appellant that he wanted to pay at that rate. At the time of his plea, the appellant executed and tendered a plea questionnaire to the trial court in which he acknowledged that, upon his plea of guilty, the prosecuting attorney would recommend that the court take such plea “under advisement for seven years, paid at $1,000.00 a month then dismissed when paid off.” Thereupon, the trial court entered its judgment stating that the appellant “offered a plea of guilty, which plea was taken under advisement by the Court”. The court further:
ORDERED AND ADJUDGED that the plea of guilty of Theft by Deception be and is hereby taken under advisement by the Court for a period of (7) year(s), and upon recommendation of the Prosecuting Attorney and conditioned upon the following:
(1) That the defendant pay restitution in the amount of $57,040.03, with $1000.00 due 2-24-84, and the balance payable at $ 1000.00 per month, beginning 4-1-84.
On April 1,1985, the state filed its motion for revocation of the advisory sentence, stating that the defendant has willfully and knowingly failed to pay all the restitution ordered, thereby violating the terms of his advisory sentence. A hearing was held on said motion on July 9, 1985 at which time the state offered evidence that the payments made by the appellant were irregular and have resulted in a total paid of $6,711.92, which is $7,288.08 less than the amount due under the payment schedule.
Appellant offered evidence that his ability to make restitution payments was limited inasmuch as his income for 1984 from his job with National Home Improvement, Inc., as evidenced by a W-2 form, was $8,211.75, and of that amount, $5,811.92 was paid in restitution. The owner of National Home Improvement, Inc., testified that appellant was a good employee and worked for him in 1984 until April of 1985. According to the owner, appellant earned approximately $1,500.00 between January and April of 1985, and $900.00 of that was sent to the court in January for payment of restitution. He further explained that in 1985 the appellant had several sales fall through because the title loans used by the company were discontinued. After April, 1985, when appellant left National Home Improvement, Inc., the owner testified that appellant tried to find a job with two car dealerships but failed. National Home Improvement, Inc., has offered to let appellant come back to work. The owner testified appellant could earn $12,000.00 to $15,000.00 during 1985.
The appellant testified that he is married and lives in Rogers, Arkansas. He owns a 1984 Toronado and a 1981 pickup truck. Previously he had another truck and two Cadillacs and sold them to apply to the loan on the car and truck. The two Cadillacs were apparently owned prior to incurring the restitution debt. The Toronado was bought in June, 1984, during the period of restitution, for $17,000. Appellant testified his wife is now unemployed and has been for two months and that he lived on her income before she lost her job. Since April, he stated he has looked for jobs in the auto sales field at car dealerships in Arkansas and Missouri. Appellant, his wife, and stepson lived in a large, rented house with a pool for $475 per month. Appellant said his stepson paid $275 of the rent and, when he moved out, appellant and his wife moved to Rogers where they now rent a duplex for $300 a month.
Appellant asked that his sentence not be revoked and that he be allowed to pay $300 per month instead of $1,000.
In Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980), this court specifically noted that all sentences are controlled by the provisions of Ark. Stat. Ann. § 41-803 (Repl. 1977), which provides in part that “[i]f a defendant pleads . . . guilty of an offense other than capital murder, the court may suspend imposition of sentence or place the defendant on probation, in accordance with . . . [Ark. Stat. Ann.] §§41-1201 — 41-1211.” Any provisions of the prior law that are inconsistent are repealed by implication. In this instance, the trial court ignored the specifics of Culpepper by substituting a form of court probation under the label of an “advisory sentence.” Court probation, apart from that authorized by statute, is no longer available as a sentencing alternative inasmuch as it was codified under the Arkansas Criminal Code (Act 280 of 1975) in Ark. Stat. Ann. §§ 41-801 — 41-1351 (Repl. 1977 & Supp. 1981). English v. State, 274 Ark. 304, 626 S.W.2d 191 (1982). The same is true of “advisory sentences”, and all other unauthorized forms of sentencing where the trial court takes the defendant’s plea under advisement subject to conditions, which are in essence, terms of probation or suspended sentences. The trial court was in error in its sentencing. However, the sentence was not objected to below or made a subject matter of this appeal. Since we do not have the plain error rule, we will not base our decision on the improper sentence. It is the proper subject matter for a petition for Rule 37.
Accordingly, we will view the court’s findings as though the court intended to sentence the appellant to seven years, which were suspended conditioned upon payment of restitution. This is a logical assumption in light of the fact the court, in its order of July 9th ordered and adjudged “that five and one half (5 ‘A) years of the seven (7) year sentence to the Arkansas Department of Correction heretofore deferred be pronounced upon the defendant.”
Arkansas Stat. Ann. § 41-1209 (Repl. 1977) provides in pertinent part:
(4) If a court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.
In a hearing to revoke the burden is upon the state to prove the violation of a condition by a preponderance of the evidence, and on appellate review the trial court’s findings are upheld unless 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 testimony. In those areas we defer to the trial judge’s superior position. Cavin, supra.
The trial court’s decision is not clearly against a preponderance of the evidence. Appellant’s failure to make the ordered payments, in light of his standard of living, his purchase of a $17,000 car, and the fact that he did not search for a job outside the field of auto sales, can be construed as an inexcusable failure to comply with the conditions of his suspension.
Appellant’s equal protection argument is based on holdings by the U.S. Supreme Court that the state cannot “impos[e] a fine as a sentence and then automatically conver [t] it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” Tate v. Short, 401 U.S. 395, 398 (1971); see also Williams v. Illinois, 399 U.S. 235 (1970). The Supreme Court has also held, however, that:
[I]n revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment. . . .
Bearden v. Georgia, 461 U.S. 660, 672 (1983). Here, the appellant, with the assistance of counsel, tendered his own schedule of payment for restitution in exchange for a suspended sentence and then made sporadic payments. The trial court found, in essence, that appellant “failed to make sufficient bona fide efforts legally to acquire the resources to pay.” Accordingly, there was no equal protection violation.
Affirmed.
Purtle, J., dissents.