State of Tennessee v. Donna Harvey - Dissenting

• Court: Court of Criminal Appeals of Tennessee
• Decided: November 9, 2010
• Docket: E2009-01945-CCA-R3-CD
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs July 27, 2010

STATE OF TENNESSEE v. DONNA HARVEY

Appeal from the Circuit Court for Sevier County No. 13202-II Richard R. Vance, Judge

No. E2009-01945-CCA-R3-CD - Filed November 9, 2010

J AMES C URWOOD W ITT, J R., J., dissenting.

The trial court should have rejected the guilty plea as being deficient pursuant to Tennessee Code Annotated section 40-35-304(g)(1). That subsection provides that when restitution is a component of alternative sentencing and there is “no sentencing hearing or presentence report because the defendant’s sentence is agreed upon and the payment of restitution is a part of the sentence, the plea agreement shall include the amount of restitution and the other performance requirements set out in subsection (c).” Tenn. Code Ann. § 40-35- 304(g)(1). In a theft case, payment of restitution must be “a part of the sentence” pursuant to Tennessee Code Annotated section 40-20-116. See id. § 40-20-116(a) (providing that the trial court “shall . . . order the restitution of the property” in theft cases). In the present case, the plea agreement left no sentencing issues undecided except for the amount and payment method of restitution; no presentence report was entered into evidence. Under the circumstances, the “restitution hearing” was not a “sentencing hearing” as contemplated by section 40-35-304(g)(1); to say otherwise is to render the provisions of subsection (g)(1) meaningless. I cannot fathom why the subsection reads the way it does, but it says what it says.

Based upon the effect of Code sections 40-35-304(g)(1) and -20-116(a), I would hold that the trial court was not empowered to accept the guilty plea as proffered.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE