{
  "id": 6136875,
  "name": "Bedri BEQIRI v. STATE of Arkansas",
  "name_abbreviation": "Beqiri v. State",
  "decision_date": "2006-01-25",
  "docket_number": "CA CR 04-307",
  "first_page": "45",
  "last_page": "47",
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  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
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  "last_updated": "2023-07-14T18:52:04.997483+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Baker and Glover, JJ., agree."
    ],
    "parties": [
      "Bedri BEQIRI v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Josephine Linker Hart, Judge.\nBedri Beqiri was convicted J in a Pulaski County bench trial of passing a hot check in an amount greater than $2,500, and he was sentenced to sixty months\u2019 probation and ordered to make restitution. Beqiri\u2019s appellate counsel had previously submitted a no-merit brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-30 of the Rules of the Arkansas Supreme Court and Court of Appeals. However, in an unpublished opinion, handed down on June 29, 2005, we denied Beqiri\u2019s appellate counsel\u2019s motion to withdraw and ordered that he submit a merit brief addressing the trial court\u2019s order of restitution. We were specifically concerned with whether the trial court complied with Arkansas Code Annotated section 5-4-205(a)(3)(A) (Supp. 2003). Beqiri now argues on appeal that the trial judge erred in failing to require the State to prove in a restitution hearing the amount of restitution that he owed. We agree, and we reverse and remand for the trial court to hold a restitution hearing.\nIn charging Beqiri with a single count of violating the Arkansas Hot Check Law, the State alleged that on February 28, 2003, he did \u201cmake, draw or utter checks in an amount in excess of $2,500.\u201d A food distributor, Quality Foods, was identified as the victim. At Bequiri\u2019s November 3, 2003, bench trial, Jane Elder, Assistant Credit Manager of Quality Foods, testified that, on February 28, 2002, Beqiri issued a worthless check for $6,336.48 worth of food that had been delivered to his restaurant. According to Elder, the check was twice returned by Quality Foods\u2019s bank, Bank of America. Tommie Abrams, Vice President of Operations at Beqiri\u2019s bank, The First State Bank in Conway, testified that, on the date that he wrote the check, Beqiri did not have sufficient funds to cover it. Testifying on his own behalf, Beqiri asserted that he had reimbursed Quality Foods for the dishonored checks through payments that he made to Quality Foods salesman Ralph Burley. Nonetheless, the trial court found Beqiri guilty.\nAt the December 1, 2003, sentencing hearing, when the trial judge took up the issue of restitution, Beqiri\u2019s trial counsel informed the court that Beqiri denied that he owed restitution and requested a restitution hearing. The trial court brushed aside the request and asked the prosecutor for the amount of restitution. The State replied, \u201csix thousand four hundred and thirty-six dollars and forty-eight cents,\u201d and confirmed that the restitution was only owed to Quality Foods. The trial court subsequently entered an order of restitution in the amount that was recited by the prosecutor.\nOn appeal, Beqiri argues that the circuit judge erred in failing to require the State to prove the amount of restitution that he owed at a hearing held during the sentencing phase of the trial. He contends that the plain wording of Arkansas Code Annotated section 5-4-205 (a) (3) (A) requires the State to put on proof as to the amount of restitution, and the \u201cState put on no proof whatsoever,\u201d because the statement by the prosecutor was not evidence. Further, he notes, the amount asserted by the prosecutor was $100 more than the amount of the check that was returned for insufficient funds. He finally argues that, because the State failed to put on any evidence, this case should be reversed and dismissed. We agree the trial court erred in refusing to hold a restitution hearing, but rather than dismissing this case, we reverse and remand.\nArkansas Code Annotated section 5-4-205(a) (3) (A) requires that the amount of restitution be determined \u201cby the preponderance of the evidence presented to the sentencing authority during the sentencing phase of the trial.\u201d The record is clear that no such evidence was presented; instead, the record shows only the incorrect recitation by the prosecutor of the amount of a dishonored check. It is axiomatic that a statement by counsel is not evidence. See, e.g., Wright v. State, 67 Ark. App. 365, 1 S.W.3d 41 (1999).\nRegarding the final disposition of this case, we have held that the remedy for irregularities in the calculation of restitution lies in remand for a new hearing. Tumlison v. State, 93 Ark. App. 91, 216 S.W.3d 620 (2005). Accordingly, we reverse and remand with instructions for the trial court to hold a restitution hearing.\nReversed and remanded.\nBaker and Glover, JJ., agree.",
        "type": "majority",
        "author": "Josephine Linker Hart, Judge."
      }
    ],
    "attorneys": [
      "William R. Simpson Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.",
      "Mike Beebe, Ark. Att\u2019y Gen., by: David J. Davies, Ass\u2019t Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Bedri BEQIRI v. STATE of Arkansas\nCA CR 04-307\n224 S.W.3d 575\nCourt of Appeals of Arkansas\nOpinion delivered January 25, 2006\nWilliam R. Simpson Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.\nMike Beebe, Ark. Att\u2019y Gen., by: David J. Davies, Ass\u2019t Att\u2019y Gen., for appellee."
  },
  "file_name": "0045-01",
  "first_page_order": 71,
  "last_page_order": 73
}