IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 3, 2004

STATE OF TENNESSEE v. STEVE A. WHITE

Direct Appeal from the Criminal Court for Shelby County

No. 99-09415 Joseph B. Dailey, Judge

No. W2003-01947-CCA-R3-CD - Filed October 25, 2004

Defendant, Steve A. White, appeals the trial court’s order amending Defendant’s judgment to grant

restitution to the victim in his case. Because the trial court did not have jurisdiction to amend

Defendant’s judgment, we reverse the judgment of the trial court and remand for reinstatement of

the judgment of conviction as originally entered.

Tenn. R. App. P. 3 Appeal as of Right;

Judgment of the Trial Court Reversed and Remanded

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

NORMA MCGEE OGLE, J., joined.

James S. Haywood, Jr., Brownsville, Tennessee, for the appellant, Steve A. White.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;

William L. Gibbons, District Attorney General; and James Lammey, Assistant District Attorney

General, for the appellee, the State of Tennessee. 

OPINION

I. Background

Defendant was convicted on January 29, 2000, of theft of property between $10,000 and

$60,000, violating the sales tax law, and attempted first degree murder. The trial court, by judgment

entered on February 28, 2000, sentenced Defendant as a Range I standard offender to an effective

sentence of thirty-one years in the Department of Correction. The jury did not assign a value to the

stolen property which formed the basis of Defendant’s theft conviction as provided for in Tennessee

Code Annotated section 40-20-116, and the trial court did not order Defendant to pay restitution to

the victim, Phillip Rouss, Jr. The State did not raise any issue on Defendant’s direct appeal

regarding the failure of the trial court to order restitution to the victim. State v. Steve A. White, No.
-2-

W2000-01148-CCA-R3-CD, 2003 WL 21338920 (Tenn. Crim. App., Jackson, May 23, 2003), perm.

to appeal denied (Tenn. 2003).

On May 27, 2003, the State filed a motion to modify Defendant’s judgment of conviction

requesting that the trial court grant the victim, Philip Rouse III, restitution. Relying on the supreme

court’s analysis in State v. Burkhart, 566 S.W.2d 871 (Tenn. 1978), the State argued that the failure

to grant restitution conflicted with the provisions of Tennessee Code Annotated section 40-20-116

and thus rendered Defendant’s judgment illegal. The State also argued that the victim had a

constitutional right to restitution under Article I, section 35 of the Tennessee Constitution.

The subject matter underlying Defendant’s theft conviction involved the capital contributions

and assets of a partnership in which Mr. Rouss and Defendant both held ownership interests. We

glean from the State’s motion that the post-trial pleading was prompted by the delays Mr. Rouss had

thus far encountered in civil court in his attempts to secure an accounting of the books and records

of the partnership, the clearing of title to the partnership’s realty, and the dissolution of the

partnership. The trial court acknowledged that it was impossible to know what was in the minds of

the jury on the issue of restitution, but felt that the trial court’s failure to order restitution was “an

error of constitutional magnitude.” Relying on Burkhart, the trial court granted the State’s motion

to amend Defendant’s judgment. Because there was no evidence as to the value of the property taken

from Mr. Rouss, the trial court ordered Defendant to pay $10,001 to Mr. Rouss as restitution, the

minimum dollar value of the property range supporting Defendant’s theft conviction. See Tenn.

Code Ann. § 39-14-105(4).

Initially, we agree with the State’s argument that Defendant cannot appeal as of right from

the trial court’s disposition of the State’s motion under Rule 3 of the Tennessee Rules of Appellate

Procedure. Rule 3 identifies and limits the conditions under which an appeal may lie as a matter of

right, none of which are applicable in this matter. Tenn. R. App. P. 3(b); Cox v. State, 53 S.W.3d

287, 293 (Tenn. Crim. App. 2001); State v. Leath, 977 S.W.2d 132, 135 (Tenn. Crim. App. 1998).

Nonetheless, as the State suggests, we may review Defendant’s challenge to the modification of his

sentence under what is commonly referred to as the “common-law writ of certiorari.” Leath, 977

S.W.2d at 135. Tennessee Code Annotated section 27-8-101 provides that the writ may be used to

address situations where an “inferior tribunal . . . has exceeded the jurisdiction conferred, or is acting

illegally, when, in the judgment of the court, there is no other plain, speedy or adequate remedy.”

Because we conclude that the trial court was without jurisdiction to modify Defendant’s sentence,

we shall treat this matter as a petition for writ of certiorari by Defendant. See State v. Johnson, 569

S.W.2d 808, 815 (Tenn. 1978).

On appeal, the State concedes that the trial court was without jurisdiction to modify

Defendant’s sentence to include the payment of restitution to the victim, and we agree. On February

28, 2000, the trial court sentenced Defendant to an effective sentence of thirty-one years in the

Department of Correction for, among other offenses, attempted first degree murder, a Class A felony.

See Tenn. Code Ann. § 39-11-117(a)(2). Once Defendant was transferred to the custody of the

Department of Correction, the trial court lost jurisdiction over all three of his sentences, and, as a
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general rule, the power to amend its judgments. Id. § 40-35-212(d); State v. Bowling, 958 S.W.2d

362, 363 (Tenn. Crim. App. 1997). It is well-settled that a judgment beyond the jurisdiction of the

court is void. State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996), citing Brown v. Brown, 198

Tenn. 600, 281 S.W.2d 492, 497 (1955).

The State agrees that the failure to award restitution as a part of Defendant’s sentencing was

“more than a mere clerical error.” See Tenn. R. Crim. P. 36(b). In State v. Moore, 814 S.W.2d 381,

383 (Tenn. Crim. App. 1991), a panel of this Court has previously examined the ability of a trial

court to modifya defendant’s sentence to include restitution under Rule 36. In Moore, we concluded

that if a trial court, in fact, orders restitution as a condition of probation during the sentencing

hearing, but the judgment omits such a condition, then the trial court retains authority to modify the

defendant’s judgment to reflect the payment of restitution under Rule 36. If, on the other hand, the

trial court “orders probation and, through oversight or otherwise, omits restitution as a condition, its

authority to modify the conditions to include restitution ends upon such order becoming final.” Id.

The trial court in the case sub judice clearly acknowledged that it did not order restitution when

imposing Defendant’s sentence. Whatever the reasons for this omission, we cannot conclude that

there was a clerical error in this matter. See State v. Hobert Dean Davis, No. E2000-02879-CCAR3-CD, 2002 WL 340597 (Tenn. Crim. App., Knoxville, Mar. 4, 2002), no perm. to appeal filed,

(While the trial court may correct clerical errors pursuant to Rule 36, it is without jurisdiction to

correct substantive errors after the judgment has become final.)

Initially, the State sought a modification of Defendant’s sentence under Burkhart which

provides that “a trial judge may correct an illegal, as opposed to a merely erroneous, sentence at any

time, even if it has become final.” Burkhart, 566 S.W.2d at 873. The Burkhart court recognized,

however, that while a sentence in direct contravention of a statute is illegal and void, a final

judgment which, although incorrect, is in conformity with an applicable statute is not subject to

amendment. Id. As the State now concedes, regardless of the jury’s thought processes on the issue

of restitution in this case, there is nothing on the face of the trial court’s judgment in the theft

conviction which indicates that the trial court was without authority or jurisdiction to issue it. See

Cox, 53 S.W.3d at 292, (quoting State v. Donald Ree Jones, No. M2000-00381-CCA-R3-CD, 2000

WL 1520012, at *2 (Tenn. Crim. App., Nashville, Oct. 13, 2000)), no perm. to appeal filed; Moore,

814 S.W.2d at 383.

Based upon the foregoing, we find that the trial court was without jurisdiction to modify

Defendant’s sentence. 

CONCLUSION

The judgment of the trial court is reversed, and this case is remanded for reinstatement of the

judgment of conviction as originally entered.

___________________________________ 

THOMAS T. WOODALL, JUDGE