IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

 February 2, 2010 Session

STATE OF TENNESSEE v. LISA WIGGINS

Direct Appeal from the Circuit Court for Lauderdale County

No. 8526 Joseph H. Walker, III, Judge

No. W2009-00869-CCA-R3-CD - Filed May 19, 2010

The defendant, Lisa Wiggins, pled guilty to facilitation of burglary, a Class E felony, and

facilitation of theft, a Class A misdemeanor. The trial court sentenced her to an effective

sentence of one year of probation and ordered her to pay $4,874 in restitution. On appeal,

the defendant argues that the state presented insufficient proof at the restitution hearing of

the amount of restitution, and the trial court did not consider the defendant’s financial

resources and ability to pay. Following our review, we reverse the trial court’s order and

remand the matter for consideration of the amount of restitution, the defendant’s financial

resources, and her ability to pay.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

J.C. MCLIN, J., delivered the opinion of the court, in which JERRY L. SMITH and CAMILLE R.

MCMULLEN, JJ., joined.

Tracey A. Brewer-Walker, Ripley, Tennessee, for the appellant, Lisa Wiggins.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney

General; D. Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

Background

In February 2009, a Lauderdale County grand jury indicted the defendant, Lisa

Wiggins, for facilitation of burglary, a Class E felony, and felony facilitation of theft, also

a Class E felony. The grand jury also indicted the defendant’s husband, Christopher
Wiggins, on ten counts of theft, burglary, and vandalism. On April 17, 2009, the defendant

pled guilty, pursuant to a negotiated plea agreement, to facilitation of burglary and

misdemeanor facilitation of theft. At the plea acceptance hearing, the prosecutor stated the

following factual basis for the plea:

Had this matter gone to trial the [s]tate would have presented proof with

regard to each individual mini-storage building that was broke[n] into[.]

[V]arious items were taken involving numerous victims. The mini-storage

building itself was owned by Billy Harmon, and there was damage to the locks

and some of the doors with regard to those storage buildings.

[The defendant] gave a statement in which she said ([a]s read):

I, [the defendant], and Christopher Wiggins were riding

on Drake Street Friday night. [Mr. Wiggins] pulled up to a

mini-storage, got out and said, “I will be back.” In about five

minutes or less I heard the police tell [Mr. Wiggins] to get on

the ground.

But instead [Mr. Wiggins] came back to the car and told

[the defendant] to get in the driver’s seat and drive. [Mr.

Wiggins] has gone to something storage [sic] by the nursing

home and across the street from Walker’s Motor Court. [Mr.

Wiggins] has sold items to Needle Head, Ben, Keesha, Robert

Atkins, Coon,J.D., and Dirty [asfar asthe defendant] can recall.

To her knowledge [Mr. Wiggins had] three or four TVs, a VCR,

a fish tank, George Forman [sic] grill, two big speakers, and that

is all that she [could] think of at the time.

[The defendant] rode with [Mr.] Wiggins a couple of

times[,] but she did not know where they were going until [Mr.

Wiggins] drove up, that she took a wet vac to City Pawnshop for

[him] and that she has Thank You boxes in the closet in the

living room.

. . .

[N]umerous items were found at the Wiggins residence that were linked back

to numerous mini-storagesthat were involved in these particular burglaries and

thefts.

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While none of the victims were present at the hearing to testify as to the amount of

their losses, the state advised the court as to the amount reported by each victim listed in the

indictment and the amount recorded on Mr. Wiggins’ judgment sheets. Defense counsel

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objected to the assessment of restitution because the witnesses were not available for the

defense to cross-examine. The trial court sentenced the defendant to a suspended sentence

of one year in the Tennessee Department of Correction for facilitation of burglary, to be

served concurrently with eleven months, twenty-nine days, suspended, in the workhouse for

misdemeanor facilitation of theft. The court ordered the defendant to pay restitution, jointly

and severally with her husband, in the amount of $4,874. The defendant filed this timely

appeal.

Analysis

The defendant argues that the trial court erred in the amount of restitution it assessed

against the defendant because the victims were not present to testify to the amount of their

losses, and the trial court did not consider the defendant’s financial resources or ability to

pay. The state concurs with the defendant.

When a defendant challenges the validity and amount of restitution, this court

conducts a de novo review of both the amount of restitution ordered and the method by which

it was determined. State v. Johnson, 968 S.W.2d 883, 884 (Tenn. Crim. App. 1997) (citing

Tenn. Code Ann. § 40-35-401(d) (1990)). The trial court is entitled to a presumption of

correctness on appeal. See id.

Tennessee Code Annotated section 40-35-304 sets out the procedures the trial court

must follow in ordering restitution. The trial court “may direct a defendant to make

restitution to the victim of the offense as a condition of probation.” Tenn. Code Ann. §

40-35-304(a). “Whenever the court believes that restitution may be proper or the victim of

the offense or the district attorney general requests, the court shall order the presentence

service officer to include in the presentence report documentation regarding the nature and

amount of the victim’s pecuniary loss.” Id. § 40-35-304(b). The amount of restitution that

the defendant may be directed to pay is limited to “the victim’s pecuniary loss.” Id. The

phrase “pecuniary loss” includes:

(1) Allspecial damages, but not general damages, as substantiated by evidence

in the record or as agreed to by the defendant; and

The record indicates that Mr. Wiggins pled guilty; however, hisjudgmentsheet(s) are not included 1

in the record. 

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(2) Reasonable out-of-pocket expenses incurred by the victim resulting from

the filing of charges or cooperating in the investigation and prosecution of the

offense; provided, that payment of special prosecutors shall not be considered

an out-of-pocket expense.

Id. § 40-35-304(e). There is no set formula for awarding restitution. Johnson, 968 S.W.2d

at 886. The sum of restitution ordered must be reasonable and does not have to equal the

precise pecuniary loss. State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994).

However, the court must consider not only the victim’s pecuniary loss but also the financial

resources and future ability of the defendant to pay. Tenn. Code Ann. § 40-35-304(d); State

v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001). “The purpose of restitution is not

only to compensate the victim but also to punish and rehabilitate the guilty.” Johnson, 968

S.W.2d at 885.

In ordering restitution, the trial court shall specify the amount and time of payment

and may permit payment or performance of restitution in installments. Tenn. Code Ann. §

40-35-304(c). The court may not, however, establish a payment or schedule extending

beyond the expiration of the sentence. Id. at 304(g)(2). If the defendant, victim, or district

attorney petitions the trial court, it may hold a hearing and, if appropriate, waive, adjust, or

modify its order regarding restitution. Id. at 304(f). Further, any unpaid portion of the

restitution may be converted to a civil judgment. Id. at 304(h)(1); Bottoms, 87 S.W.3d at

108.

In this case, the trial court did not address, at least on the record, the financial

resources of the defendant or her future ability to pay the restitution amount. The court did

not order the presentence service officer to document the nature and amount of the victims’

pecuniary losses. In addition, the court did not clearly specify the time or amount of

payments. Accordingly, we remand the case to the trial court to consider evidence of the

victims’ pecuniary losses and the defendant’s financial resources and ability to pay and to set

an amount of restitution that the defendant can reasonably pay.

Conclusion

Based on the foregoing, we reverse the trial court’s order and remand the matter to the

Lauderdale County Circuit Court for a determination of the appropriate amount of restitution,

the defendant’s financial resources and her ability to pay consistent with this opinion.

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___________________________________

J.C. McLIN, JUDGE

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