### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 16, 2001 Se ssion STATE OF TENN ESSEE v. CAROLY N WHEELER Direct Appeal from the Criminal Court for Davidson County

No. 97-A-645 Seth Norman, Judge

No. M2001-00337-CCA-R3-CD - Filed Marc h 18, 2002
The appellant was sentenced on November 24, 1997 for two c onvictions, theft of pr op erty valued in excess of $10,000 and forgery . Two concurr ent three y

ear sen tences w ere impo sed with incarcerat ion for one ye ar followed by two years of

community corrections. Restitution was not ordered until the appellant’s sentenced had expired, and she brings this appea l maintaining that

the trial court lacked jurisdiction to impose restitution followi ng t he expiration of her sentence. The Stateconcedes that the restitution order in this cas e wa s entered following the expiration of the appellant’s sentenc e and is therefor e in contravention of

Tennessee Code Annotation section 40-35- 304(g)(2). We agree

and reverse the order of re stitution entered in this case. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t is Reve rsed. J ERRY L. S MITH , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AV ID G. H AYES , JJ., joined. Kenneth Quillen, Nashville, Tennessee, for appellant, Car olyn Wheeler. Paul G. Summers, Attorney General & Reporter; Elizabet h T. Ryan, Assistant Attorney Genera l; Victor S. Johnson, District Attorney General; and Jason M. Lawless, Assistant District Attorney, for appellee, State of Tennessee. OPINION
On September 11, 19 97, the ap pellant pled guilty to theft of property ove

r $10,000 and fo rg er y. On November 24, 1997, the trial cou rt impo sed concurrent th ree y ear sen tences f or both-2-

convictions wi th se rv ic e o f o ne yea r, da y fo r d ay, and the ba lance on community

correc tions. The trial court ordered that the amount of restitution be determined by the community corre ctions officer. For reasons not apparent in this record, the State did not file a Motion to D etermine Restitution until February 14, 2000, over two yea

rs after the appellant was sentenced. Another seven months passed befo re the State filed a pleading setting for th the alleged damages suff ered by the victim. This document was filed on September 22, 2000. A hearing was held on January 15, 2001, regarding the State’s motion to set restitution. Based on testimony from the appellant’s probation officer, the trial court ordered the a ppellant to pay the victim $5,720.00.

Lack of Jurisdiction To I

mpose Restitution Following Expiration of Sentence

The appellant maintains that the trial court was without authority to orde r restitution in this
case following the expiration of the appellant’s sentence in this case. The State on appeal does not contest th is assert ion. We too a

re const rained t o agre e with

the parties a

nd must the

refore revers e the order that the appellant pay restitution.

The appellant in this case was sentenced on November 2 4, 1997, to a t erm of thr

ee years, withservice of

one year, da

y f or day and the ba

lance on community

corrections. With pr

e-trial jail credits awarded to the appellant in the amount of 39 days, her sentence expired on October 17, 2000. The order of

restitutio n in this ca se was e ntered o n January

5, 2001, se

veral months bey ond the expiration of the probationary term. Tennessee Code Annotated section 40-35-304(g)(2) provides that:-3- A def endant sentenced in whole or in part to the pay men t o f restitution pursuant to § 40-35-104(c)(2), or otherwise, shall be responsi ble for the payment of suc

h restitution until the expiration of the sentence imposed by

the court, and any

payment or performance schedule e st ablished by the cour t shall not extend beyond such expiration date. Thus, when the trial court issued its order of restitution on January 5, 2001, the a ppellant’s sentence had e

xpire d, an d any

rest ituti on wo uld ha

ve ext end ed bey

ond the expi

ration da te, in contravention of Tenne ssee Code Annotate d section

40-35-30 4(g)( 2). The ju dgment o f the trial court is therefore REVERSED.

___________________________________ JERRY L. SMITH, JUDGE