# FILED
February 26, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) NO. 02C01-9704-CC-00135 Appellee, ) ) McNAIRY COUNTY VS. ) ) HON. JON KERRY GABRIEL BLACKMA

N, ) BLACKWOOD, JU DGE

) Appellant. ) (Sentencing - Restitut ion)

FOR THE APPELLANT : GARY F . ANT RIC AN District Public Defender JEANNIE A

. KAESS (At Hearing) Assistant Public Defender 17805 Highway 64 P.O. Box 700 Somerville, TN 38068-0700 C. MICHAEL ROBBINS (On Appeal) 3074 East Street Memphis, TN 38128 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter JANIS L. TUR NER Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General ED NEAL McDA

NIEL Assistant

District Attorney

General 300 Indu strial Par k Drive P.O. Box 473 Selmer, TN 38375-0473

OPINION FI LED:

REMANDED
JOE G. RILEY, JUDGE1 No “s tatement of facts” was attached to the transcript as an exhibit. However ,

defendant’s pre

sentence repor

t is part of the rec

ord on appeal. 2 OPINION

The defendant, Gabriel Blackman, pled g uilty in the McNairy County

Circuit Court to one (1) coun t of aggravated burgl ary and one (1) count of burg lary. The trial court imposed con cur rent sentences of three (3) years and two (2) years, respecti vely. The trial court suspended the sentences, except for thirty (30) days, and ordered the rem ain der of the sentence to be served on probation. As a condition of probation, the trial court ordered that defendant pay $6,000 in restitution to the victims. On appeal, defendant challenges only the trial court’s imposition of restitution. After a rev

iew of the record before us, we remand to the trial court for further proceedings consis tent with this opinion.

I

The defendant, Michael A. Carroll and Clay Kiser Henry were indicted on one (1) count of aggrava ted burgl ary and on e (1) coun t of burgl ary. The offenses, while occurring on the same day, involv ed two separate victi ms. Each defendant pled guilty to the charged offenses andreceived concurrent sentences of three (3) years and two (2) years, with all but 30 days suspended. The trial court also re quir ed each to pay $6,000 in restituti on as a condition of probation. Carroll and Henry were sentenced approxi mately four days prior to defendant. At defendant’s sen tencin g hearing, the state’s proof consisted of the assistant district attorney’s request that the presentence report and the stat ement of facts presented at

the guilty plea be made par t of the record. 1 The only testimony at the hearing was that of the defendant, who agreed to pay restitution for property damage c aused by t he aggravat ed burgla ry. The record contains vic tim impact statements and a list of items and total loss sustained by one victim. J.R. Tull, the vic tim of the burglary, req uested tota l2 It appears that this loss was covered by insuran ce. The itemized lis t indicates a deductible

of $250, reducing the

loss to $5, 833.72. We

assume an insuran

ce company

paid the victim $5,833.72 for this loss after reducing the total los s of $6 ,083.72 by the $250 deductible. 3 restitution in the amount of $4,500. Tull did not su bmit any documentation for this loss and asked that $4,000 of the total amount be paid for “mental distress. ” Donald Nelson, the aggravated burglary victim, supplied an itemized list of his loss, which amounted to $6,083.72. 2 At the conclusio n of the hearin g, the trial court imposed the sentences and added, “[r]estitution wi ll be in the amount of $6,000.” No find ings of fact or allocation to the victi ms were made by the tri al court regarding restitution.

II

Defendant contends that there is no basi s in the record to support the trial court’s imposition of restitution. He argues that the state failed to present any evidence of the victims’ pecuniar y loss. Therefore, he maintai ns that the trial court erroneously ordered the payment of restitution. A trial court may order a defendant to pay restitution as a conditi on of prob ation. Tenn. Code Ann. § 40-35-304(a). The amoun t of restitution is base d upon the victim’s pecuniar y loss. Tenn. Code Ann. § 40-35-304(b). The term “pecuniary loss” is defined as: (1) All special damages, but not general damages, as substantiated by evidence in the rec

ord or as agreed to by the defendant; and (2) Reasonable out-of-pocket e xp enses incurred by the victim resulting from the filing of charges or cooperating in the

investigation and prosecution of the offense . . . Tenn. Code Ann. § 40-35-304(e). In determining the amount of restitution, the trial court should consider the financial resources of the def endant and future ability to pay. Tenn. Code Ann. § 40-35-304(d); State v. Smith , 898 S.W.2d 742, 747 (Tenn.

C r im. App. 1994). Furthermore, the sum imposed should be reasonable. Smith , 898 S.W.2d at 747.3 See Tenn. Code Ann. § 40-35-304(b) (“[w]henever the cou rt believes that restitution may be proper . . . the court shall order the present ence service officer to include in the presentencereport documentation regarding the nature and amount of

the victim's pecuniary loss.).
4 Effective July 1, 1996, Tenn. Code Ann. § 40-35-304 was amended to include the following: If the court sentences a defendant to payment of restitution and believes that payment to more than one (1) victim is proper, the court shall determine the pecuniary loss of eachvictim as providedin this section and shall order such amount of restituti

on to each such vic

tim Tenn. Code Ann. § 40-35-304(g)(3). 4 III

This case must be remanded to the trial court for a hear ing on the issue of restitution. The rec ord co ntains insufficient evidence to support the trial court’s decision. 3 Although the tria l c ourt probably did not consider “mental distress” in setting restitution, mental distr ess is not a com p ensable pecuniary loss as contemplated by the statute. See generally State v. Lewis , 917 S.W.2d 251 (Tenn. Crim. App. 1995). Furthermore , th is cause involves two victims and possibly an insurance company. The trial court should al locate the amount among the interes ted parties. 4 Moreover, the written judgments of conviction provide for $6,000 restitution
on both counts. This implies that defendant is r esponsible for

$12,000 in restitution, or $6,000 for e

ach victi m. On remand, the trial court must re solve several issues, including: 1. The actual loss sustained by each victim, as substantiated by appropriate do cumentation or testimony add uced at the hea ring; 2. The defendant’s ability to pay such restitution; 3. The manner and time frame in which defendant will be requir ed to make payments; and 4. Th e allocation of restitution among the victi ms and/or insuranc e company.

IV5 For the foregoing reasons, we remand to the trial court for fin dings on the issue of restitution as

required by Tenn. Code An n. § 40-35-304. Upon remand, the trial court shall receive such further testimony as the parties might wish to offer.

JOE G. RILEY, JUDGE

CONCUR:

JOE B. JONES, PRESIDING JU DGE

PAUL G. SUMM ERS, JUDGE