IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JUNE 1996 SESSION FILED April 29, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr. Appellate C ourt Clerk ) APPELLANT, ) ) No. 03-C-01-9504-CR-00118 ) ) Sevier County v. ) ) Ben W. Hooper, II, Judge ) ) (Sentencing) KEVIN CRESPO, ) ) APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Charles W. Burson Kevin Crespo, Pro Se Attorney General & Reporter P.O. Box 155 500 Charlotte Avenue New Market, TN 37820 Nashville, TN 37243-0497 (Appeal Only)
Michael J. Fahey, II Charles R. Edwards, Jr. Assistant Attorney General Attorney at Law 450 James Robertson Parkway 129 Commerce Street Nashville, TN 37243-0493 Sevierville, TN 37862 (Trial Only) Alfred C. Schmutzer, Jr. District Attorney General 125 Court Avenue, Room 301-E Sevierville, TN 37862
G. Scott Green Assistant District Attorney General 125 Court Avenue, Room 301-E Sevierville, TN 37862
OPINION FILED:________________________________
APPEAL DISMISSED
Joe B. Jones, Presiding Judge
OPINION The State of Tennessee appeals from the sentences imposed by the trial court.1
The state contends the trial court abused its discretion by (a) failing to impose the fines
recommended by the jury2 and (b) requiring the defendant to make restitution in an amount
less than the amount of damages found by the jury. 3 After a thorough review of the record,
the brief of the state, and the law governing the issues presented for review, it is the
opinion of this Court the state does not have a right to appeal the issues presented for
review. Therefore, the state's appeal is dismissed.4 It is parenthetically noted that if this
Court could consider the issues presented for review, the Court would affirm the judgment
of the trial court.5
1 Tenn. Code Ann. § 40-35-402(d). 2 The amount of the fines determined by a jury sets the upper limitation of the fine a trial court can impose. However, a trial court is not required to impose a fine notwithstanding the jury has recommended the amount of the fine. The applicable statute, Tenn. Code Ann. § 40-35-301(b), provides in part: “[T]he jury finding the defendant guilty shall also fix the fine. . . . The jury shall report such fine with a verdict of guilty. When imposing sentence, after the sentencing hearing, the court shall impose a fine, if any, not to exceed the fine fixed by the jury. . . .” (emphasis added). 3 In this jurisdiction, a “sentencing court may direct a defendant to make restitution to the victim of the offense.” Tenn. Code Ann. § 40-35-304(a). However, there is no designated formula or method for the computation of the amount of restitution. State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995). The trial court must consider the “pecuniary loss” incurred by the victim, Tenn. Code Ann. § 40- 35-304(e), as well as “the financial resources and future ability of the defendant to pay or perform.” Tenn. Code Ann. § 40-35-304(d). The amount determined by the trial court must be reasonable. Tenn. Code Ann. § 40-35-303(d)(10). Furthermore, “the amount ordered to be paid does not have to equal or mirror the victim's precise pecuniary loss.” Smith, 898 S.W.2d at 747. 4 The statute which provides the state with the right to appeal sentencing issues, Tenn. Code Ann. § 40-35-402, limits the right to certain enumerated grounds listed in the statute. The statute does not provide the state with the right to appeal questions concerning fines and restitution. 5 The presentence report reveals the defendant does not have a high school diploma. He has worked as a carpenter, and he supported his wife and child. When the defendant was sentenced, he was not able to work due to an injury to his back. He did not have any other source of income. The state did not offer any evidence to establish the defendant’s financial resources or ability to pay a fine and restitution. The state did not question the defendant when he testified at the sentencing hearing.
(continued...)
2 _____________________________________________ JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________ GARY R. WADE, JUDGE
______________________________________ PAUL G. SUMMERS, JUDGE
FILED April 29, 1997
Cecil Crowson, Jr. IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE Appellate C ourt Clerk AT KNOXVILLE
(...continued) Based on this evidence, the state has failed to overcome the “presumption that the determinations made by the [trial] court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-402(d).
3 JUNE 1996 SESSION
STATE OF TENNESSEE, ) ) APPELLANT, ) ) No. 03-C-01-9504-CR-00118 ) ) Sevier County v. ) ) Ben W. Hooper, II, Judge ) ) (Sentencing) KEVIN CRESPO, ) ) APPELLEE. )
SEPARATE CONCURRING AND DISSENTING OPINION
I concur in the results reached by the majority in this case; however, I must
respectfully disagree with some of the reasoning. The majority parenthetically noted that
if it could consider the state's issues, it would affirm the judgment of the trial court. I agree.
A trial judge has the power to release a defendant from payment of fines, in whole or in
part, pursuant to Tenn. Code Ann. § 40-24-102.6 Also, Tenn. Code Ann. § 40-35-301(b)
supports this proposition. The record reveals that the jury set fines totaling $12,500. The
trial judge waived the entire amount of fines imposed against the appellant. I believe this
was the judge's prerogative.
Also, a trial judge may direct the payment of restitution to the victim as a condition
of probation pursuant to Tenn. Code Ann. § 40-35-304. This Court has held that when
restitution is ordered as a condition of probation, the authority to determine the
appropriateness and the amount of restitution lies solely with the trial court. State v.
McKinney, 1994 WL 592042 (Tenn. Crim. App. Oct. 26, 1994). The trial judge reduced
the amount of restitution awarded by the jury. This action was the judge’s prerogative.
The majority concludes that the state does not have a right to appeal questions
concerning fines and restitution. Such holding is based upon the language of Tenn. Code
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
JUNE 1996 SESSION FILED April 29, 1997
STATE OF TENNESSEE, ) Cecil Crowson, Jr. Appellate C ourt Clerk ) APPELLANT, ) ) No. 03-C-01-9504-CR-00118 ) ) Sevier County v. ) ) Ben W. Hooper, II, Judge ) ) (Sentencing) KEVIN CRESPO, ) ) APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Charles W. Burson Kevin Crespo, Pro Se Attorney General & Reporter P.O. Box 155 500 Charlotte Avenue New Market, TN 37820 Nashville, TN 37243-0497 (Appeal Only)
Michael J. Fahey, II Charles R. Edwards, Jr. Assistant Attorney General Attorney at Law 450 James Robertson Parkway 129 Commerce Street Nashville, TN 37243-0493 Sevierville, TN 37862 (Trial Only) Alfred C. Schmutzer, Jr. District Attorney General 125 Court Avenue, Room 301-E Sevierville, TN 37862
G. Scott Green Assistant District Attorney General 125 Court Avenue, Room 301-E Sevierville, TN 37862
OPINION FILED:________________________________
APPEAL DISMISSED
Joe B. Jones, Presiding Judge
OPINION The State of Tennessee appeals from the sentences imposed by the trial court.1
The state contends the trial court abused its discretion by (a) failing to impose the fines
recommended by the jury2 and (b) requiring the defendant to make restitution in an amount
less than the amount of damages found by the jury. 3 After a thorough review of the record,
the brief of the state, and the law governing the issues presented for review, it is the
opinion of this Court the state does not have a right to appeal the issues presented for
review. Therefore, the state's appeal is dismissed.4 It is parenthetically noted that if this
Court could consider the issues presented for review, the Court would affirm the judgment
of the trial court.5
1 Tenn. Code Ann. § 40-35-402(d). 2 The amount of the fines determined by a jury sets the upper limitation of the fine a trial court can impose. However, a trial court is not required to impose a fine notwithstanding the jury has recommended the amount of the fine. The applicable statute, Tenn. Code Ann. § 40-35-301(b), provides in part: “[T]he jury finding the defendant guilty shall also fix the fine. . . . The jury shall report such fine with a verdict of guilty. When imposing sentence, after the sentencing hearing, the court shall impose a fine, if any, not to exceed the fine fixed by the jury. . . .” (emphasis added). 3 In this jurisdiction, a “sentencing court may direct a defendant to make restitution to the victim of the offense.” Tenn. Code Ann. § 40-35-304(a). However, there is no designated formula or method for the computation of the amount of restitution. State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995). The trial court must consider the “pecuniary loss” incurred by the victim, Tenn. Code Ann. § 40- 35-304(e), as well as “the financial resources and future ability of the defendant to pay or perform.” Tenn. Code Ann. § 40-35-304(d). The amount determined by the trial court must be reasonable. Tenn. Code Ann. § 40-35-303(d)(10). Furthermore, “the amount ordered to be paid does not have to equal or mirror the victim's precise pecuniary loss.” Smith, 898 S.W.2d at 747. 4 The statute which provides the state with the right to appeal sentencing issues, Tenn. Code Ann. § 40-35-402, limits the right to certain enumerated grounds listed in the statute. The statute does not provide the state with the right to appeal questions concerning fines and restitution. 5 The presentence report reveals the defendant does not have a high school diploma. He has worked as a carpenter, and he supported his wife and child. When the defendant was sentenced, he was not able to work due to an injury to his back. He did not have any other source of income. The state did not offer any evidence to establish the defendant’s financial resources or ability to pay a fine and restitution. The state did not question the defendant when he testified at the sentencing hearing.
(continued...)
2 _____________________________________________ JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________ GARY R. WADE, JUDGE
______________________________________ PAUL G. SUMMERS, JUDGE
FILED April 29, 1997
Cecil Crowson, Jr. IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE Appellate C ourt Clerk AT KNOXVILLE
(...continued) Based on this evidence, the state has failed to overcome the “presumption that the determinations made by the [trial] court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-402(d).
3 JUNE 1996 SESSION
STATE OF TENNESSEE, ) ) APPELLANT, ) ) No. 03-C-01-9504-CR-00118 ) ) Sevier County v. ) ) Ben W. Hooper, II, Judge ) ) (Sentencing) KEVIN CRESPO, ) ) APPELLEE. )
SEPARATE CONCURRING AND DISSENTING OPINION
I concur in the results reached by the majority in this case; however, I must
respectfully disagree with some of the reasoning. The majority parenthetically noted that
if it could consider the state's issues, it would affirm the judgment of the trial court. I agree.
A trial judge has the power to release a defendant from payment of fines, in whole or in
part, pursuant to Tenn. Code Ann. § 40-24-102.6 Also, Tenn. Code Ann. § 40-35-301(b)
supports this proposition. The record reveals that the jury set fines totaling $12,500. The
trial judge waived the entire amount of fines imposed against the appellant. I believe this
was the judge's prerogative.
Also, a trial judge may direct the payment of restitution to the victim as a condition
of probation pursuant to Tenn. Code Ann. § 40-35-304. This Court has held that when
restitution is ordered as a condition of probation, the authority to determine the
appropriateness and the amount of restitution lies solely with the trial court. State v.
McKinney, 1994 WL 592042 (Tenn. Crim. App. Oct. 26, 1994). The trial judge reduced
the amount of restitution awarded by the jury. This action was the judge’s prerogative.
The majority concludes that the state does not have a right to appeal questions
concerning fines and restitution. Such holding is based upon the language of Tenn. Code
6 Release of fines and forfeitures- The seve ral courts in which a cause is finally adjudged are authorized, either before or after final judgment, for good cause, to release the defendants, or any one (1) or more of them, from the whole or any part of fines or forfeitures accruing to county or state. Tenn. Code Ann. § 40-24-102 (1990).
4 Ann. § 40-35-402, which limits the state's right to appeal to certain enumerated grounds.
Questions concerning fines and restitution are not explicitly listed in the statute. It is with
this issue that I respectfully disagree with my colleagues.
The first sentence of Tenn. Code Ann. § 40-35-402 states: "[t]he district attorney
general in a criminal case may appeal from the length, range or manner of the service of
the sentence imposed by the sentencing court." Tenn. Code Ann. § 40-35-402(a) (1990).
Our Supreme Court has stated that the term "range of punishment" refers to a fine in
excess of fifty dollars. State v. Bryant, 805 S.W.2d 762, 765 (Tenn. 1991). Based upon
this, I find that questions concerning fines and restitution are encompassed in the broad
language of Tenn. Code Ann. § 40-35-402. I find that the state does have a right to appeal
questions concerning fines and restitution.
__________________________ PAUL G. SUMMERS, Judge