FILED

May 14, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CR-00300

)

Appellee, )

) SULLIVAN COUNTY

V. )

) HON. R. JERRY BECK, JUDGE

JOHN MILLER, JR. )

) (FELONY RECKLESS

Appellant. ) ENDANGERMENT)

FOR THE APPELLANT: FOR THE APPELLEE:

LAURA RULE HENDRICKS JOHN KNOX WALKUP

Eldridge, Irvine & Hendricks Attorney General & Reporter

606 W. Main Street, Suite 350

P.O. Box 84 MICHAEL J. FAHEY, II

Knoxville, TN 37901-0084 Assistant Attorney General

(On Appeal Only) 450 James Robertson Parkway

Nashville, TN 37243-0493

STEPHEN M. WALLACE GREELEY WELLS

District Public Defender District Attorney General

TERRY L. JORDAN I.T. COLLINS, JR.

Assistant Public Defender Assistant District Attorney General

P.O. Box 839 P.O. Box 526

Blountville, TN 37617-0839 Blountville, TN 37615-0526

(At Trial and On Appeal)

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION
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The Defendant, John Miller, Jr., appeals as of right pursuant to Rule

3 of the Tennessee Rules of Appellate Procedure from the trial court’s order

denying his “Motion for Relief from Fine and Court Costs”. We affirm the

judgment of the trial court.

The Defendant was indicted by the grand jury of Sullivan County for

the offense of reckless endangerment. Following a jury trial, he was found guilty

as charged and the trial court sentenced the Defendant to serve two (2) years in

the Tennessee Department of Correction. In addition, the Defendant was fined

$500.00 and ordered to pay court costs. The sentence was imposed and

judgment was entered on April 13, 1995. The Defendant appealed to this Court

from the judgment of the trial court entered on April 13, 1995, challenging the

sufficiency of the evidence to support his conviction and arguing that the

sentence was excessive. The judgment of the trial court regarding his conviction

and sentencing was affirmed in an opinion released by this Court on March 11,

1997. State v. John Miller, Jr., No. 03C01-9512-CC-00382, Sullivan County

(Tenn. Crim. App., Knoxville, filed March 11, 1997).

 On February 14, 1996, the Defendant filed with the trial court of

Sullivan County a “Motion for Relief from Fine and Court Costs,” requesting the

trial court to “suspend the fine and court costs in this matter.” Following a

hearing, the trial court denied the motion and Defendant filed a timely appeal

from that order. 
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In regard to the Defendant’s motion as it pertained to the court costs,

we recognize that Tennessee Code Annotated section 40-25-129 provides

certain exceptions to the general rule that a Defendant convicted of a criminal

offense must pay all of the court costs. One of the exceptions is where the

Defendant has been convicted in a court of record and the trial court has made

a finding at “any evidentiary hearing that the defendant is indigent and remains

indigent at the time of conviction.” Id. Whether or not the motion as it pertained

to the court costs was filed too late to be considered by the trial court, our

Supreme Court has held that the mere fact a defendant is indigent does not

require the trial court to waive paym ent of court costs by the defendant. State v.

Black, 897 S.W.2d 680, 683 (Tenn. 1995). Furthermore, the Suprem e Court in

Black held, “The decision of whether to grant a waiver of costs still rests within

the [trial] court’s discretion; and that decision cannot be reversed in the absence

of evidence in the record which indicates that ‘such discretion has been explicitly

abused to the great injustice and injury of the party complaining.’” 897 S.W.2d at

684. 

At the hearing on the Motion for Relief from Fine and Court Costs,

the total amount of fine and costs owed as of the date of the hearing was

$1,147.00. Prior to incarceration, the Defendant was receiving Social Security

payments in the amount of $900.00 per month. He was mistakenly paid during

the time he was incarcerated in the amount of $6,300.00. When the mistake was

found, he was required to repay the $6,300.00. Defendant was apparently able

to make a lump sum payment of approximately $3,000.00, with the balance of

$3,300.00 to be paid over a period of time by a $100.00 reduction per month in

the benefit payments to him. The Defendant was unable to satisfactorily explain
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to the trial court what he had purchased or how he had otherwise disposed of the

$3,300.00 which he could not pay back to Social Security in a lump sum

payment. The trial court decided that the Defendant had the burden of

establishing his inability to pay the court costs. After a thorough review of the

record, we are unable to hold that the trial court abused its discretion in denying

the Defendant’s motion to waive the court costs.

A fine imposed upon a Defendant following conviction is a part of the

sentence received by the Defendant, and as our Suprem e Court held in State v.

Bryant, 805 S.W .2d 762, 765, (Tenn, 1991). “It is clear that the trial judge has

the power to impose any fine which does not exceed the fine fixed by the jury,

and to reduce, suspend, or release fines.” The Defendant, on the direct appeal

from his conviction, did not challenge the fine.

Rule 35 of the Tennessee Rules of Criminal Procedure allows a trial

court to reduce a sentence for a defendant sentenced to the Tennessee

Department of Correction, but a motion to the court to reduce the sentence under

Rule 35 must be filed within 120 days after the date the sentence is imposed.

The Rule specifically provides that “[no] extension shall be allowed on the time

limitation.” T.R.Cr.P. 35. Since a fine is a part of the sentence, State v. Bryant,

id. application for a reduction in the fine must be filed within 120 days. In this

case, the application was filed approximately six (6) months after the deadline

imposed by Rule 35 of the Tennessee Rules of Criminal Procedure. 

However, Tennessee Code Annotated section 40-24-102 provides

that there is no deadline for a Defendant to seek relief from the trial court
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regarding reduction of a fine. Under this statute, a fine can be released in whole

or in part only for good cause. For the reasons stated above in this opinion, we

hold that the Defendant did not meet his burden of establishing good cause for

his fine to be reduced. 

We therefore affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JERRY L. SMITH, Judge