# FILED

October 16, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JULY 1997 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9704-C C-00121 ) Appellant ) BLEDSOE COU NTY ) v. ) HON. J. CURTIS SMITH, ) JUDGE JEFF WELCH, ) ) Indictment on assault dismiss ed Appellee )

FOR THE APPELLANT FOR THE APPELLEE Charles W. Burson Philip A. Condra Attorney General & Reporter Public Defender 204 Bets y Park Drive Michael J. Fahey, II P.O. Box 220 Assistant Attorney Gener al Jasper, TN 37347 450 James Robertson Parkwa y Nashville, TN 37243-0493 David E. Crockett District Attorney General Lisa Nidiffer Rice Assistant District A

ttorney General Rte. 19 Box 99 Johnson City, TN 37601

OPINION FILED

REVERSED AND REMAND ED

JOHN K. BYERS SENIOR JUDGE1 Other sanctions were app lied but are not raised as i ssues in this case. -2- O P I N I O N
The trial court found that a pris on disciplinary finding

which assessed restitution in the sum of $100.00 1 against the defendant for damages caus ed to a prison guard’s uniform, w hen he was assaulted by the defendant, barred the prosecut ion of th e defen dant on a charge of assault a nd batte ry. We reverse the judgment of the trial cour t and remand this case to the tr ial court for further proceedings. Three days after the defendant assaulted a guard, a disciplinar y hearing was held. The hearing officer suspended the de fendant’s canteen privileges for six weeks, took away 56 days of sentence reduction c redits, and ordered payment of $100.00 in re

stitution for

the guard’ s uniform. The trial judge found the order to pay $100.00 restitution amoun ted to a fine which was imposed for t he purpose of vindicating public justice and barred the prosecut ion of th e defen dant und er the pro hibition against d ouble jeo pardy. In State v. Conley

, 639 S.W.2d 435 (Te nn. 1982), the Supreme Court held prior punishment for double jeopar dy purposes consists of depr ivation of liberty i n a prior proceeding or th e imposition of a fine levied for the purpose of vindicating public justice. Either

or both will consti

tute a bar to a subsequent pros ecution. The question here is whet her the restitution order of $100.00 is such a punishment. We think not. It is clear that disci plinary action by p rison authorities does not bar prosecution for the commission of the crime from which the pris on imposed disciplinary sancti ons. Ray v. State , 577 S.W.2d 681 (Tenn. Crim. App. 1978). The Ray case, however, did not encompass the sanction of forfeiture of money as does this case.-3- We do not believe, on the basis of the facts in thi s case, that requiring the payment of $100.00 restitution for dam ages to the uniform of the guard can be said to be an imposi tion of a fine for the purpos e of vindicating p ublic justice. Alt hough the evidenc

e of the value

of the uniform vis-a-vis the imposition of $100.00 in restitution is not shown, we are unable to conclude that the amount is so disproportionate to the actual damage to be construed as being a fine for the purpose of punishment for the underly ing crime as was found i n U.S. v. Halper , 109 S. Ct. 1892, 490 U.S. 435 (1989) . We find the imposition of restitution by pr ison authorities is not gro

ssly disproportionat

e to the remedial interest i n maintaining disclipinary contr

ol of the prisons. See Hernandez v. Fundora , 58 F.3d 802 (2d Cir. 1995). In fact, it appears an ass essment of $100.00 is made against any inmate whose misconduct causes damag e to a guard’s uniform wi thout regard to the actual damage. We find this is a part of institutional discipline. The trial judge’s concl usion that restitution is only to be considered by the trial judge is, in our view, broader than the sentencing act provides and gives no basis for dismissing the indic tment in this case. The judgment of the trial court i s reversed, and the case i s remanded to the trial court for further proceedings.

John K. Byers, Sen ior Judge CONCUR:

David H. Wel les, Judge

Thomas T. W oodall, Judge