FILED

February 26, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY 1998 SESSION

STATE OF TENNESSEE, )

) NO. 02C01-9704-CC-00135

Appellee, )

) McNAIRY COUNTY

VS. )

) HON. JON KERRY

GABRIEL BLACKMAN, ) BLACKWOOD, JUDGE

)

Appellant. ) (Sentencing - Restitution)

FOR THE APPELLANT:

GARY F. ANTRICAN

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 APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

JANIS L. TURNER

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

ELIZABETH T. RICE

District Attorney General

ED NEAL McDANIEL

Assistant District Attorney General

300 Industrial Park Drive

P.O. Box 473

Selmer, TN 38375-0473

OPINION FILED: 

REMANDED

JOE G. RILEY,

JUDGE
1

 No “statement of facts” was attached to the transcript as an exhibit. However,

defendant’s presentence report is part of the record on appeal.

2

OPINION

The defendant, Gabriel Blackman, pled guilty in the McNairy County Circuit

Court to one (1) count of aggravated burglary and one (1) count of burglary. The

trial court imposed concurrent sentences of three (3) years and two (2) years,

respectively. The trial court suspended the sentences, except for thirty (30) days,

and ordered the remainder 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 review of the record before us, we remand to the trial court for

further proceedings consistent with this opinion.

I

The defendant, Michael A. Carroll and Clay Kiser Henry were indicted on one

(1) count of aggravated burglary and one (1) count of burglary. The offenses, while

occurring on the same day, involved two separate victims. Each defendant pled

guilty to the charged offenses and received concurrent sentences of three (3) years

and two (2) years, with all but 30 days suspended. The trial court also required

each to pay $6,000 in restitution as a condition of probation. Carroll and Henry

were sentenced approximately four days prior to defendant.

At defendant’s sentencing hearing, the state’s proof consisted of the

assistant district attorney’s request that the presentence report and the statement

of facts presented at the guilty plea be made part of the record.1

 The only testimony

at the hearing was that of the defendant, who agreed to pay restitution for property

damage caused by the aggravated burglary.

The record contains victim impact statements and a list of items and total

loss sustained by one victim. J.R. Tull, the victim of the burglary, requested total
2

 It appears that this loss was covered by insurance. The itemized list indicates a

deductible of $250, reducing the loss to $5,833.72. We assume an insurance company paid

the victim $5,833.72 for this loss after reducing the total loss of $6,083.72 by the $250

deductible.

3

restitution in the amount of $4,500. Tull did not submit 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 conclusion of the hearing, the trial court imposed the sentences and

added, “[r]estitution will be in the amount of $6,000.” No findings of fact or

allocation to the victims were made by the trial court regarding restitution.

II

Defendant contends that there is no basis 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’ pecuniary loss. Therefore, he maintains that the trial court

erroneously ordered the payment of restitution.

A trial court may order a defendant to pay restitution as a condition of

probation. Tenn. Code Ann. § 40-35-304(a). The amount of restitution is based

upon the victim’s pecuniary 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 record or as agreed to by the defendant; and 

(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 . . .

Tenn. Code Ann. § 40-35-304(e). In determining the amount of restitution, the trial

court should consider the financial resources of the defendant and future ability to

pay. Tenn. Code Ann. § 40-35-304(d); State v. Smith, 898 S.W.2d 742, 747 (Tenn.

Crim. 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 court believes that restitution

may be proper . . . 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.).

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 each victim as provided in this section and shall order such

amount of restitution to each such victim

Tenn. Code Ann. § 40-35-304(g)(3).

4

III

This case must be remanded to the trial court for a hearing on the issue of

restitution. The record contains insufficient evidence to support the trial court’s

decision.3 Although the trial court probably did not consider “mental distress” in

setting restitution, mental distress is not a compensable pecuniary loss as

contemplated by the statute. See generally State v. Lewis, 917 S.W.2d 251 (Tenn.

Crim. App. 1995).

Furthermore, this cause involves two victims and possibly an insurance

company. The trial court should allocate the amount among the interested parties.4

Moreover, the written judgments of conviction provide for $6,000 restitution

on both counts. This implies that defendant is responsible for $12,000 in restitution,

or $6,000 for each victim.

On remand, the trial court must resolve several issues, including:

1. The actual loss sustained by each victim, as substantiated by

appropriate documentation or testimony adduced at the hearing;

2. The defendant’s ability to pay such restitution;

3. The manner and time frame in which defendant will be required

to make payments; and

4. The allocation of restitution among the victims and/orinsurance

company.

IV
5

For the foregoing reasons, we remand to the trial court for findings on the

issue of restitution as required by Tenn. Code Ann. § 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 JUDGE

 

PAUL G. SUMMERS, JUDGE