The hearing officer recommended that appellant be credited with 8 months against confinement for his partial restitution. The convening authority rejected the hearing officer s recommendation for partial credit and vacated the suspended confinement in a supplemental order dated September 8, 1995. The Court of Criminal Appeals affirmed the findings and sentence and held that the convening authority s vacation action was lawful. The Government asserts that appellant s failure to make restitution as promised authorized the convening authority to vacate the suspended sentence. The Government argues that Bearden is not applicable to this case because it involved a fine imposed as a sentence instead of a plea agreement bargained for by appellant.
Restitution is a permissible term of a pretrial agreement.
We hold, therefore, that in 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 within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. Both Bearden and Tuggle involved confinement imposed as part of a sentence, rather than a negotiated plea agreement.