# FILED May 14, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1997

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9608-CR-00300 ) Appellee, ) ) SULLIVAN COUNTY V. ) ) HON. R.JERRY BE CK, JU DGE JOH N MIL LER , JR. ) ) (FELONY RECKLESS Appe llant. ) ENDANGERMENT)

FOR THE APPELLANT : FOR THE APPELLEE : LAURA RULE HENDRI CKS JOHN KNOX WALKUP Eldridge, Irvine & Hendricks Attorney General& Reporter 606 W. Main Street, Sui te 350 P.O. Box 84 MICH AEL J. F AHEY , II Knoxvill e, TN 37901-0084 Assistant Attorney General (On App eal Only) 450 James Robertson Parkway Nashvill e, TN 37243-0493 STEPHEN M. WA LLACE GREELEY WELLS Distri ct Public

Defender Distri ct Attorney General TERR Y L. JOR DAN I.T . COLLI NS, JR. Assistant Public Defender Assistant Distri ct Attorney General P.O. Box 839 P.O. Box 526 Blountvi lle, TN 37617-0 839 Blountvi lle, TN 37615-0 526 (At Tr ial and On A ppea l)

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE



# OPINION-2- The Defen dant, Joh n Miller, Jr., appeals as of right p ursua nt to R ule 3 of the Tennessee Rules of Appellate Procedure from the trial co urt’s or de r denying his “Mot ion f or Rel ief

fro m Fine and Co u rt Costs”.We affirm the judgm ent of the tria l court.

The Defendantwas indicted by the grand j ury of Sul livan County for the offense o f reckless endan germe nt. Followinga jury trial, he w as foun d guilty
as charged and the tri al court s entenced the Defendant to serve two (2) years in the Tennessee Department of Corr ection. In addit ion, theDefendant was fi ned $50 0.00 an d ordered to pay court costs. The sentence was i mposed and judgment was e ntered on Ap ril 13, 1995. The Defenda nt appealed to this Court from the judgment of the tri al court en tered on Apri l 13, 1995, challengi ng the sufficiency

of the evi dence to support his conv i ction and arguing that the sentence was excessive . The judgmentof the trial court regar ding his conv iction and sentencing wasaffirmed in an opini on released by this Court on March 11, 1997. State v. John M iller, Jr. , No. 03C01- 9512- CC -00382 , Sullivan C ounty (Tenn. C rim. App., Kno xville, filed March 11, 1997 ).

On February 14, 19 96, the Def endant fil ed with thetrial court o f Sullivan County a “Moti on for Reli ef from Fine and Court Costs,” requesting the trialcourt to “susp end th e fin e and cou rt costs in this matter.”

Followinga hearing, the tri al court de nied the moti on an d Defendant fi led a ti mely appeal from tha t order.-3- In regard to the Defendant’s motion as i t pertained to t he court costs, we recognize t hat Tennessee Code A nnotate d section 40-25-129 provi des certain exc eptions to the generalrule that a Defendant convi cted of a criminal offense must pay all of the court costs. One of the exce ptions is where the Defendant has been con victed in a court of record and the trialcourt has made a findin g at “an y evide ntiary h earing that the defen dant is indigent and remains indigent at the time of conviction .” Id . Whether or not t he motion as it pertained to the cour t costs wa s filed too late to be conside red by the t rial cour t, our Supr eme Court has held that the mere fact a defe ndant is i ndigent does not require the trial court to waive paym ent of court costs by th e defen dant. State v. Black , 897 S.W .2d 680, 683 (Tenn. 199 5). Furthermo re, the Suprem e Court in Black hel d, “Th e dec is ion of w hethe r to gran t a waive r of cos ts still rest s within the [tri al] court’s discr etion; and thatdecisio n can not be revers ed in the absence of evidence in therecord which indica tes tha t ‘such discre tion ha s bee n explic itly abused to the great

injust ice and injury of the part y complaini ng.’” 897 S. W.2d at 684.

At the hearing on the Motion for Relief f rom Fine and Court Costs, the total amo unt of fi ne and c osts owed as of t he date of t he hearing was $1,147.00. Prior to incarcerat ion, the D efenda nt was re ceiving S ocial Sec urity paym ents in the amount of $900.00 per month. He wa s mist aken ly paid durin g the time he was incarcerated in the amount of $6,300.00. When the mistake was found, he was required t o repay the $6, 300.00. Defendant was a ppare ntly able to make a lump sum payment of approxi mately $3,000. 00, with t he balance of $3, 300. 00 to be pai d over a per iodof t ime by a $100.00 reduc tion per m onth in the bene fit payme nts to him . The D efenda nt was u nable to satisfa ctorily ex plain-4-

to the tri al court what he had purchased or how he had otherwise di sposed of the $3,300 .0 0 which he could not pay back to Social Securi ty in a lump su m paym ent. The trialcourt deci ded that the Defendant had the bur den of
es tablis hing his inabi lity to pay the co urt costs . After a thorough rev iew of th e record, we are un able to hold that the t rial cour t abused its discret ion in denyi ng the Defendant’s motion to waive t he court costs.

A fine imposed upon a Defendant followi ng convicti on is a part of the sentence receive d by the Defe ndan t, and a s our S uprem e Cou rt held in State v. Bryant , 805 S.W .2d 762 , 765, (Te nn, 199 1). “It is clear th at the tri al judge has t he p ower to impo se any fine which does not exc eed the fine fixed by the jury, and to reduce, suspend, or release fi nes.” The Defendant , on the di rect appeal from his convi ction, d id not chal lenge the f ine.

Rule 35 of the Te nnessee Rules of Crim inal Procedu re allows a trial court to reduce a sentence for a defendant sentenced to the Tennessee Department of Correcti on, but a moti on to the court to reduce the sentence under Rule 35 mu st be filed w ith in 1 20 days after the date th e sentence is i mposed. The Rule spec ifically pro vid es t hat “[ no] extensi on s hal l beall owedon t he t ime limitation.” T.R.C r.P. 35. Since a fine is a part o f the sente nce, State v. Bryant , id
. applic ation fo r a redu ction in the fine mus t be filed within 1 20 da ys. In this case, the applicati on was filed approximately six (6) months a ft er the deadli ne impos ed by R ule 35 of th e Ten nesse e Rules of Crimin al Proce dure.

Howeve r, Tennessee Code Annotated section 40-24-102 provides thatthe re is no deadline for a Defenda nt to seek relief from th e trial court-5-

regarding reduction of a fine.Under this st atute, a fine can be released in who le
orin part only for good c ause. For the reasons state d above in thi s opini on, we hold that the Defendant di d not meet his burden of establi shing good cause for his fine to be reduce d.

We therefore affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JERRY L. SMITH, Judge