# FILED
April 29, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JUNE 1996 SESSION

STATE OF TENNESSEE, ) ) APPELLANT, ) ) No. 03-C-01-9504-CR-0 0118 ) ) Sevier County v. ) ) Ben W. Ho oper, II, Judge ) ) (Sentencing) KEVIN CRESPO, ) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Charles W. Burson Kevin Crespo, Pro Se Attorney General & Repor ter 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 Gener al Attorney at Law 450 James Robertson Parkwa y 129 Commerce Street Nashville, TN 37243-0493 Sevierville, TN 3 7862 (Trial On ly) Alfred C. Schmutzer, Jr. District Attorney General 125 Court Avenue, Room 301-E Sevierville, TN 3

7862 G. Scott Green Assistant District A

ttorney General 125 Court Avenue, Room 301-E Sevierville, TN 3

7862

OPINION FILED:_______________________________

_ APPEAL DISMISSED Joe B. Jones, Pre siding Judge 

## O P I N I O N1 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 req uired 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 find ing the defendant guilty shall also fix the fine. . . . The ju ry shall report suc h fine with averdict 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 adefendant to make restitution to the victim of the offense.” Tenn. Code Ann. § 40-35-304(a). How ever, th ere is no designated formula or metho d for the computation of the

amount of

r e stitution. 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” incu rred 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 ). Fu r thermore, “the amount ordered to be paid does not have to eq ual or mirror the vi ctim's precis e pecuniary loss.” Smith , 898 S.W.2d at 747.

4 The statute whic h providesthe state with the right to appeal sentencing issues, Tenn. Code Ann. § 40-35-402, limits the right to certain enumerated grounds listed i n the sta tute. The statute does not provide the state with the right to appeal q uestion s concerning fines and restitution.

5 The presentence report reveals the defendant does not have a high school diploma. He has worked as a car penter, and he supported his wife and chi ld. 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 i ncome. The state did not offer any evidence to establish the defendant’s financial resources or ability to pay a

fine and restitution. The state di d not question the defendant when he testified at t he sentencing h earing. (continued...) 2 The State of Tennessee appeals from the sentences imposed by the t ri al court. 1 The state contends the trial cou rt abused its discretion by (a) failing to im pose the fines recommended by the jury 2 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 govern ing the issues presented for revi ew, it is the opinion of t his Court the state does not ha ve a right to appeal the issues presented for review. Therefore, the

state's appeal is dismiss ed. 4 It is parenthetically noted that if this Court could consider the issues presented for review, the Cour t would affirm thejudgment of the trial court. 5(...continued) Based on this evidence, the stat e has failed to overcome the “p resumption that the determinationsmade by the [trial] cour t from which theappeal is taken are correc t.” Tenn. Code Ann. § 40-35-402(d). 3 

# FILED
April 29, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk ________

________________________________ ____ _ JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________ GARY R. WADE, JUDGE

______________________________________ PAUL G. SUMMERS, JUD GE

IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE6 Release of fines and forfeitures - The seve ral courts in which a cause is finall y adjudged are auth orized, either before or aft

er final judgment, for good cause,to release the defenda nts , or

any one (1) or mo re o

f th em, from the whole or any part of fines or forfeitures accruing to county or stat e. Tenn. Code Ann. § 40-24-102 (1990). 4 JUNE 1996 SESSION STATE OF TENNESSEE, ) ) APPELLANT, ) ) No. 03-C-01-9504-CR-0 0118 ) ) Sevier County v. ) ) Ben W. Ho oper, II, Judge ) ) (Sentencing) KEVIN CRESPO, ) ) APPELLEE. )
SEPARATE CONCURRING AN D DISSENTING OPINION
I concur in the results reached by the majo rit y in this case; however, I must respectfully disagree with some of the reasoning. The majority parenthetical ly noted that if it could consider the stat e's issues, it woul d affirm the judgment of the trial cour t. I agree. A trial judge has the power to release a defendant from paymen t 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 totali ng $12,500. The trial judge waived the entire amount of fines imposed against the appellant. I believe this was the judge's prer

ogative.

Also, a trial judge may direct the payment of restitution to the vic

tim 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 cour t. State v. McKinney , 1994 WL 592042 (Tenn. Crim. App. Oct. 26, 1994). The trial judge reduced the amount of restitution award ed by the jury. This action was the judge’s prerogative.

The majority concludes that the state does not have a ri ght to appea l q uestions concerning fines and restitution. Such holding is based upon the language of Tenn. Code5

Ann. § 40-35-402, which li mits the state's right to appeal to certain enumerated grounds. Questions concerning fines and resti tution are not explicitly

listed in the statute. It is w ith this issue that I respectfull y 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 SupremeCourt ha s 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 doe s have aright to appeal questions concerning fine s and restitution.

__________________________ PAUL G. SUMMERS, Ju dge