Finn v. State

John E. Jennings, Judge. On March 8, 1989, Brian Finn pled guilty to forgery in the second degree and criminal mischief and received a suspended sentence. Appellant was ordered to pay restitution of $ 1,195.00 and $50.00 per month toward extradition costs and court costs. In May, 1989, the state filed a petition to revoke appellant’s suspended sentence and in June of 1989, Finn paid $135.00. He had paid nothing more by the time of the revocation hearing on August 15, 1990. The trial court found Finn in contempt and sentenced him to thirty days in jail with twenty suspended. Appellant’s sole argument on appeal is that the evidence was insufficient to support the court’s judgment. Mr. Finn contends that the state did not establish that his failure to pay was inexcusable under Ark. Code Ann. § 5-4-309 (1987). We hold that the evidence was amply sufficient to support the court’s judgment. Even if Mr. Finn’s testimony is fully credited, which the trial court was not obliged to do, it does not establish an excuse for nonpayment as a matter of law. Appellant paid nothing at all toward the restitution from June of 1990 through the date of the hearing in August, 1990. The picture that emerges from appellant’s testimony is that, although he was employed and able to support his fiancee, he was waiting on an anticipated inheritance to pay off the ordered restitution. We hold that the evidence was sufficient to support the judgment of the trial court. A search of the record discloses several possible errors, which the dissent believes warrant reversal. None of these issues were brought to the attention of the trial court and both the supreme court and this court have frequently said that we do not address issues raised for the first time on appeal. See e.g., Harbour v. State, 305 Ark. 316, 807 S.W.2d 663 (1991); L&S Concrete Co. v. Bibler Brothers, 34 Ark. App. 181, 807 S.W.2d 50 (1991). Even issues of constitutional dimension are waived unless raised in the trial court. See Smith v. City of Little Rock, 305 Ark. 168, 806 S.W.2d 371 (1991). We do not have a “plain error” rule in Arkansas. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). Not only was there a failure to raise these issues in the trial court, they are not raised here on appeal. “No citation of authority is necessary in saying that, aside from jurisdiction, we do not reverse cases on theories not presented by appellant to either the trial court or this court.” Arkansas Kraft Corp. v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975). It is contended that appellant’s sentence of ten days1 in jail for contempt is an “illegal sentence”. As the dissent correctly states, an “illegal sentence” in this context means one that is “illegal on its face”. Abdullah v. State, 290 Ark. 537, 720 S.W.2d 902 (1986). Whether or not it was error for the trial court to hold Finn in contempt of court, a sentence to ten days for criminal contempt is manifestly not illegal on its face; i.e., the sentence is well within the range of punishment the trial court was authorized to impose for criminal contempt. See Blanks v. State, 300 Ark. 398, 779 S.W.2d 168 (1989); Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989). Because the issues raised by the dissent were not raised by the defendant, we decline to address them. Affirmed. Cooper and Mayfield, dissent. Footnotes [1] The trial court sentenced Finn to thirty days in jail with twenty suspended. This amounted to a remission as to the suspended term. Smith v. Smith, 28 Ark. App. 56, 770 S.W.2d 205 (1989).