# FILED
September 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 03C 01-9709-CR-00417 Appellee, ) ) KNOX COUNTY VS. ) ) HON. MARY BETH LEIBOWITZ, RUSSELL A. B URRIS, ) JUDGE ) Appellant. ) (Resentencing)

FOR THE APPE LLANT: FOR THE APPELLEE:
ROBERT T. VAUGHN JOHN KNOX WALKUP -and- Attorney General & Repor ter JERRED A. CR ESSY 176 Second Ave., North ELIZABETH B . MARNEY Suite 500 Asst. Attorney General Nashville, TN 37201 John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General ROBERT L. JOLLEY, JR. Asst. District Attor

ney General City-County Bldg. Knoxville, TN 37902

OPINION FILED:____________________
AFFIRMED IN PART, REVERSED A ND MODIFIED IN PART JOHN H. PEAY, Judge2 

### O P I N I O N
This is the secon d appeal in this case. The defendant contends that the trial court erred in s entencing him to a term of confinement r ather than probation. The defendant also contends that the trial court erred in orderin g him to p a y restitution in conjunction w ith a se ntence of confinement. We affirm the defendant’s sentence of confinement, but reverse the trial court’s restitution order.

In 1995, the defendant pled guilty to voluntary manslaughter committed in 1980. After a hearing, the trial court sentenced him to an indeterminate sentence of four to ten years, the first thi rty days to be served in t he county jail, the nex t five months on work release, and theremaining nine years and six months on probation. As a condition of probation, the trial cour t o rd ered the defendant to pay restitution of app roximately ninety-f ive thousand dollars ($95,000) i n monthly installmen ts. In the defendant’s first appeal, he challenged the t rial court’s order o f restitution , arguing inter alia that the trial court lacked the authority to order restitution in a voluntary manslaug hter case and that the trial court er red in determining the amount of r estitution. The State challeng ed the defend ant’s split sentence. Applyi ng the law in effect at the ti me the offen se wa s committed, this Court determined that the defendant’s split sentence was illega l and held that the trial court’s choices in sentencing the defendant were either inca rcerati on or probation, but not both. St ate v. Burris , 950 S.W.2d 42, 43 (Te nn. Crim. App. 1996). This Court also held that restitution may be ordered in a

voluntary manslaughter case as
a condition of probation so long as the amount is reasonably and realist ically linked to the defendant’s ability to pay. Id . Subject tothese holdings, this Court remanded the case back to the trial court for resentencing. Id . at 44.

On remand, the trial court he ld a nother hearing, at whi ch the defendant3

testified. By this time, the defendant had already complete d the confinement term previouslyordered as w ell as almo st two years of probati on. The defendant had not, however, paid the amount of restitution the court ordered him to pay on a monthly basis, claiming that he did not have sufficient funds t o pay the amoun t ordered. O n crossexamination, the defendant admitted he received mor e monthly income than he had reported to the court

and that he had

chosen to pay

for other mo nthly e xpenses rather than paying his court-ordered restitution. The trial court found that while the defendant mayhave been a good probationer , he lied to the court about the amount of his monthly income. The trial court also noted concern that the defendant hi d the victim’s death for manyyears, did not come forward vo lunta rily, and had chosen to pay numerous other bills but not his court-ordered restitution. Basedon these findings, the trial court ordered the defend ant to pa y one hund red thou sand dol lars ($10 0,000) p lus six tho usand two hundred dollars ($6200) in funeral expenses to the victim’s family as restitution. The trial court also ordered the

defendant to serve an indeterminat e sentence of four

to six years in custody, minus time alr eady served.

PROBATION

The d efendan t argues several reasons why the trial court erred in sentencing him to a term of confinement rather thanprobation. Primarily , the defendant contends that there is a presumption for ordering probationand that the State failed to carry its burden of showing w hy he should not

be sentenced to probation. This ar gument is grounded in law inappl icable to this case. As we stat ed on the first appeal of this case, neither the law of the Criminal S ente ncing Ref orm Act of 1982 nor the Criminal Sentencing Reform Act of 1989 applies when s entencing the de fe ndant in this case. Burris , 950 S.W.2d at 43. Rather, th e applicable law in this case is the law that was in4

effect when the defendant committed the crime in 1980. T.C. A. § 40-35-117(c). Under this law, the defendant car ried the burden of showing exceptional circumstanc es that would entitle him to probation. See State v. Smith , 662 S.W.2d 588, 590 (Tenn. 1983); Kilgore v. Sta te , 588 S.W.2 d 567, 568 (Tenn. Crim. App. 1979). At the resentencing hearing, the trial court determined that the defendan t f ai le d t o car ry hi s b ur de n. We agree. This argument is without merit.

The defendant also c ontends that because the sentence for voluntary manslaughter now

carries a lesser penalty than under the 1980 sentencing statute, the trial court erred in failing to apply the lesser penalty. It is clear this argument lacks merit, considering we held in our prior opinion that the defendant must be sentenced under the law in effect at the time the crime w as committed. Burris , 95 0 S.W.2d at 43. Nevertheless, we br

iefly address the defendant’s ar gument.

The defendant relies upon State v. Pearson , 858 S.W.2d 879 (Te nn. 1993), but Pear son does not support his contentions. In Pearson , the Tennessee Supreme Court determined that when a tri al court imposes a sentence after the effective date of the 1989 sentencing statute for a crime committed before that date, the trial court must calculate the appropriate sentence under b oth the 1982 sentencing statute and the 1989 sentencing statute

and impo

se the l esser sentence of t he two. Id. at 880. As stated above, neither the 1982 n or the 1989 sentencing statutes apply to this case, thus distinguishing

this case from Pearson . Moreover, the hold ing of Pearson was premised upon ex post facto concerns, which the i nstant case fails to implicat e. In atte mp ting to relyupon Pearson , the defendant urges this Court to compare the first se ntence imposed with the sentence imposed on remand, whic h is admittedly more harsh than the split sentence originally order ed. This, however, is

not the proper

analysis , as the laws in5

effect at the ti me the crime was committed must be compared with the la ws in effect at the time of sentencing. In this cas e, the penalty for voluntar y manslaughter is now less than it was at the time the defendant c ommitted the crime, and th us, ex post facto concerns are not implicated. Therefore, this argument too must fail.

The remainder of the defendant’s arguments merits little discuss ion. The defendant contends that because the resentencing hearing was essenti ally a hearing to revoke his probation, the State had t he burden of showing why probation should be revoked. This contention is without merit because this case was clearly r emanded for a resentencing hearing, at which th e trial court had to choose bet ween alte rnative sentences of confinement or probation; it clea r ly was not remanded for a hearing to
rev oke the de fendant’s probation. The defendant also bri efly contends that he was denied equal protection of the laws by receivin g a harsher sentence on remand following
a “successful appeal” from a conv iction. This argument fails because the defend ant
never appealed his conviction, let alone successfully; rather, the only “successful appeal” in this case was by the State, which appealed the split sentence orig inally imposed. Thus, under the authority the defendant c ites, the defendant’ s equ al protection rights were not violated. See Whaley v. North Carolina , 379 F.2d 221 (4th Cir. 1967).

Finally, the defendant contends that if there i s n o presumption for probation, then the trial court erred in denyin g probation because it had note d exceptional circumstances

at his first sentencing hearing and the only thi ng that had changed since then was that he had successfull y completed almost two y ears of probation. The defendant’s argument must fail becaus e the record shows that the trial court based its decision to deny probation partial ly upon the fact that the defendant had chosen not to pay court-ordered restitut ion since theoriginal sentenc ing hearing, even th ough he had6

the means to pay. To this, the d efendant contends that contrary to the trial court’s fi ndings, h e did not lie about his income or hide it from the trial co urt. This contention lacks merit, however, because the trial court’s findings are supported by a preponderance of evidence in the record. See State v. Tate , 615 S.W.2d 161, 1 62 (Tenn. Crim. App. 1981).

RESTITUTION

The defendant does not challenge the amount of r estitution imposed, nor does he argue that he cannot afford to pay the amount of restitution i mposed. Rather, the defendant argues only that the trial court commit ted plain error by imposing restitution i n conjunction with a sent ence of confinement. We must agree.
No punishment may be imposed w ithout statutory authority. See State v. Davis , 940 S.W.2d 558 (Te nn. 1997). As previously discussed, the applicable sentencing law in the instant case is the law in effect in 1980, when the offense was committed. T.C.A. § 40-35-117; Burris , 950 S.W.2d at 42. Thus, our inquiry i s limited to whether any statute that was in effect in 1980 authorized the trial court to impo se restitution as part of a sentenc e of confinement. See Davis , 940 S.W.2d at 561. Our review of the applicabl e statutes reveals that t he only sentencing statute authorizing the imposition of restitution was T.C.A. § 40-20-116. Section 40-20-116, which remains in effect today, allow s the imposition of restituti on when the jury ascer tains the value of the property l ost or stolen in cases of theft or fraud. State v. Bryant , 775 S.W.2d 1 (Tenn. Crim. App. 1988). Because the ins tant case involves onl

y a count of voluntary manslaught

er, § 40-20-116 does not expr essly apply to this

case. See Davis , 940 S.W.2d at 562 n.7.7 Our Supreme C

ourt has rec

ognized, “

This Court c

annot affirm a sentence that is not expressly authorized by the Legislature.” Davis , 940 S.W.2d at 562. “Because there was no other authority under which courts may impose restitution as part of a custodial sentence, we must conclude . . . tha t the trial court did not have the authority to impose restitution in this case.” Id. Accordingly, despi te the fact that the defendant failed to object w hen the trial court orall

y imposed restitution at his resentencing hearing , we must reverse the trial court’s resti

tution order. Id.
In sum, the trial court did not err in sentencing t he defendant to a term of confinement. However, bec ause the trial court lack ed the statutory authority to order the defendant to pay restitution as part of a sentence of confinement, we r everse that portion of the defendant’s senten ce. In all other respects, the defendant’s sentence is affirmed.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ CORNELIA A. CLARK , Special Judge