        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs July 21, 2015


               STATE OF TENNESSEE v. KRISTY L. POLAND

                 Appeal from the Criminal Court for Roane County
                    No. 2011-CR-37    E. Eugene Eblen, Judge


                 No. E2014-02521-CCA-R3-CD-OCTOBER 5, 2015
                          ___________________________

CAMILLE R. MCMULLEN, J., dissenting.

        I respectfully dissent from the conclusion reached by the majority in this case.
When establishing the proper amount in restitution owed, the trial court should base the
figure on the victim’s pecuniary loss as well as the defendant’s financial resources and
future ability to pay or perform. T.C.A. § 40-35-304(b), (d)-(e) (2010); State v. Smith,
898 S.W.2d 742, 747 (Tenn. Crim. App. 1994). Furthermore, the payment schedule is
not to exceed the term of the sentence imposed. T.C.A. § 40-35-304(c), (g)(2); see also
State v. Daniel Lee Cook, No. M2004-02099-CCA-R3-CD, 2005 WL 1931401, at *4
(Tenn. Crim. App. Aug. 10, 2005) (concluding that there was no way the appellant could
pay $9,000 in restitution at a rate of $150 per month during a sentence of eleven months
and twenty-nine days). Finally, the Tennessee Supreme Court has previously stated that
the trial court “simply should [] set the restitution at an amount it believe[s] [the
defendant] can pay” rather than attempting to “facilitate payment of its order of
restitution.” See State v. Mathes, 115 S.W.3d 915, 919 (2003).
        In this case, the Defendant-Appellant did not dispute that $8,100 was the fair
market value of the items stolen from the victim. However, the testimony adduced at the
restitution hearing showed that the Defendant-Appellant lived with her husband, who was
disabled, and their three school-aged children. Her sole income at the time of the hearing
was from her husband’s $1,247 disability check and a part-time job for which she
received $500 per month.
      In setting the restitution amount, the trial court stated:
                  Well, the amount is reasonable, $8100.00 part. And of
           course legally you can’t require something that can’t happen.
                  I’m going to set the monthly payments at $75.00. And we
           will review this at the beginning of the November term. And this
           can be extended up to the full range.
                And we will see what the progress is like on the first
           Monday in November of next year.
                 Of course that doesn’t come close to getting the total of it.
           So we will have to extend that.
        Defense counsel then asked, “So, the Court is not taking the income into
consideration and reducing the total amount of restitution?” To which the trial court
replied, “No.” The Defendant-Appellant received a one-year probated sentence, and the
trial court ordered her to pay $75 per month to satisfy the $8,100 in restitution owed.
Based on my review of the record, the trial court erred in failing to consider the
Defendant-Appellant’s ability to pay in determining the restitution owed. I would also
conclude that the amount of restitution ordered by the trial court is constrained by the
sentence imposed. See, e.g., State v. John Tyler Gilley, No. E2011-01627-CCA-R3-CD,
2012 WL 4358731, at *5 (Tenn. Crim. App. Sept. 25, 2012) (concluding that $9,370 at a
rate of $90 per month was an improper amount of restitution to be paid during four years
of probation).
        Even though the majority has decreased the restitution amount owed, I disagree
with the $175 per month order, which is more than double the monthly amount originally
imposed by the trial court. Based on the monthly income and expenses outlined in the
record, I do not believe that the Defendant-Appellant has the financial resources or the
future ability to pay this amount. The majority supports its reduction of restitution owed
based on defense counsel’s comment during the hearing that restitution should be “in the
neighborhood of 1,500 or $2,000.” However, defense counsel also stressed that the
Defendant-Appellant could pay $50 per month because she had only $64 left after
expenses. I recognize that the majority deems the two monthly $45 phone bills and $20
weekly tithing to the church as unnecessary. Nevertheless, based on the rather
conservative estimate of income and expenses for a family of five, I would reverse the
restitution order of the trial court and remand this matter for the limited purpose of
determining the restitution owed based on the Defendant-Appellant’s financial resources
and future ability to pay or perform.




                                                 _________________________________
                                                 CAMILLE R. MCMULLEN, JUDGE




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