        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 23, 2010

       STATE OF TENNESSEE v. WILLIAM CHANDLER DANIELS

               Direct Appeal from the Circuit Court for Cocke County
                       No. 1365    Ben W. Hooper, II, Judge




               No. E2009-02172-CCA-R3-CD - Filed December 23, 2010


Appellant William Chandler Daniels pled guilty to a charge of theft of property valued at
more than $10,000. The plea agreement stipulated that Appellant’s sentence was to be three
years, with the manner of service and restitution to be determined by the court. The
completed judgment form indicates that Appellant was sentenced to serve his three years in
the Tennessee Department of Correction. It also provides that “[r]estitution is reserved
pending a hearing.” At a subsequent hearing, the trial court ordered Appellant to pay $2,000
in restitution. In this appeal, Appellant challenges the trial court’s authority to order
restitution in combination with a custodial sentence as well as the court’s evaluation of the
appropriate amount of restitution. We conclude that the trial court was permitted to order
restitution; however it did not consider Appellant’s ability to pay or specify the time or
amount of payment. Therefore, the case is remanded to the trial court for further
proceedings.

               Tenn. R. App. P. 3 Appeal as of Right; Case Remanded.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Keith E. Haas, Newport, Tennessee, for the appellant, William Chandler Daniels.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; James B. Dunn, District Attorney General; and William Brownlow Marsh,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION
                                  I. Factual Background

        The record reflects that Appellant was indicted by a Cocke County Grand Jury for
theft of property over $10,000 in violation of Tennessee Code Annotated section 39-14-103
for stealing a silage baler. It further reveals that Appellant entered into a plea agreement
whereby he agreed to plead guilty to the charge in exchange for a sentence of three years.
Pursuant to the plea agreement the manner of service and restitution were to be determined
by the trial court.

       The trial court entered a judgment on August 24, 2009. It provides that Appellant was
sentenced to serve his three year sentence in the Tennessee Department of Correction. It
further provides that “[r]estitution is reserved pending a hearing.” It also stated that
“[Appellant] is allowed work release.”

        On September 29, 2010, the trial court held a hearing to determine the amount of
restitution. The court heard testimony from only one witness: the victim, Clevis Wayne
Mason. The court considered Mr. Mason’s personal opinion of the value of the baler as well
as evidence of its insured value and an estimate of its fair market value. Explaining that the
proper amount of restitution was the fair market value of the baler minus any insurance
payments the victim received, the court ordered Appellant to pay $2,000 in restitution.

        The same day, the court entered an order setting restitution. It states: “The Court,
after hearing proof from the victim and the argument of counsel, sets the amount of
restitution in this cause at $2,000.00 payable to the victim. . . .”

        This appeal followed. In it, Appellant challenges the trial court’s authority to order
restitution in combination with an entirely custodial sentence. He also asserts that the trial
court erred in setting the amount of restitution by failing to consider his ability to pay.

                                        II. Analysis

       Before we evaluate the merits of Appellant’s challenge, we must first determine that
this court has jurisdiction. See State v. Comer, 278 S.W.3d 758, 760 (Tenn. Crim. App.
2008). Tennessee Rule of Appellate Procedure 3(b) provides a criminal defendant “a right
to appeal when the trial court has entered a final judgment of conviction.” Id. at 760-61
(quotation marks omitted). However, “Rule 3 appeals . . . may be taken only from final
judgments.” State v. Maddox, 603 S.W.2d 740, 741 (Tenn. Crim. App. 1980) (emphasis
added). This finality rule is derived both from Rule 3(b) and from this court’s jurisdiction
under Tennessee Code Annotated section 16-5-108. See Comer, 278 S.W.3d at 761; see also
Tenn. Code Ann. § 16-5-108(a)(1).

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        This court has recently issued diverging opinions concerning whether it has
jurisdiction in cases where, as here, the judgment of conviction does not provide the amount
of, or set a schedule for, restitution payments. Compare Comer, 278 S.W.3d at 760-62
(concluding the court lacked jurisdiction where the judgment “incorporated by reference” an
earlier restitution order that stated the “Payment Schedule shall be set by the Court upon
completion of the Appeal Process”), and State v. Rodney Northern, No. E2009-01969-CCA-
R3-CD, 2010 WL 2852288 (Tenn. Crim. App. at Knoxville, July 21, 2010) (concluding that
the court lacked jurisdiction because the judgment stating restitution “TBD @ hearing” was
not a final order and the subsequent restitution order “[did] not purport to amend the earlier
judgment form”), pet. to rehear denied, (Aug. 31, 2010), with State v. Donna Harvey, No.
E2009-01945-CCA-R3-CD, 2010 WL 4527013, at *3-5 (Tenn. Crim. App. at Knoxville,
Nov. 9, 2010) (exercising jurisdiction without discussion where record revealed that the
judgment stated “[r]estitution hearing on 1/20/09” and the restitution order did not expressly
amend the judgment).

        Because the critical language contained in the judgment in Comer expressly
contemplated additional action by the court, we do not believe the outcome of the instant case
is dictated by that decision. In Comer, the judgment stated that the payment schedule would
be set after an anticipated appeal. 278 S.W.3d at 760. That language made the order
“functionally incomplete and . . . necessarily interlocutory in nature.” Id. Here, by contrast,
nothing in the record suggests the trial court anticipated further action beyond the restitution
order. Thus, as explained below, the judgment form and restitution order constitute a final
judgment. Accordingly, Comer is not an impediment to our exercise of jurisdiction in the
present case.

       Upon review, for the reasons explained in Judge Tipton’s dissent in Northern, No.
E2009-01969-CCA-R3-CD, 2010 WL 2852288, at *4-5, we conclude that, between the
judgment of conviction, which references a later restitution hearing, and the order emanating
from that hearing, the record contains a “final order” and provides a sufficient basis to invoke
our jurisdiction, see Tenn. Code Ann. § 16-5-108(a)(1); Tenn. R. App. Pro. 3(b).

         As for the merits, Appellant first contends that the trial court erred in ordering any
restitution because it sentenced Appellant to confinement in the Department of Correction.
We disagree. Among the sentencing alternatives provided in Tennessee Code Annotated
section 40-35-104(c) are payment of restitution, id. at (c)(2), and “[a] sentence of continuous
confinement in the department of correction if the conviction is for a felony and the sentence
is at least one (1) year,” id. at (c)(8). Furthermore, the judgment of conviction plainly states
that Appellant is eligible for work release for some portion of his sentence. Subsection (c)(7)




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contemplates such a scenario as part of an alternative sentence that can include restitution.1
Moreover, Tennessee Code Annotated section 40-20-116(a) requires restitution “[w]henever
a felon is convicted of stealing or feloniously taking or receiving property, or defrauding
another of property.” We conclude that the trial court had authority to order both custody in
the Department of Correction and restitution.

        Although restitution may be ordered in conjunction with a custodial sentence, our law
provides that all restitution orders must be determined via the procedure in Tennessee Code
Annotated section 40-35-304. See Tenn. Code Ann. § 40-35-304(g). That is true even where
restitution is mandated under section 40-20-116(a). See State v. Brigitte Pauli, No. M2002-
01607-CCA-R3-CD, 2003 WL 21302991, at *18-20 (Tenn. Crim. App. at Nashville, June
5, 2003) (applying section 304(g) for an offense where restitution was mandatory under
section 116(a)); see also Harvey, No. E2009-01945-CCA-R3-CD, 2010 WL 4527013, at *3-
5. The procedure requires, among other things, that the court “specify” the “amount and time
of payment,” which “may” include “payment or performance in installments.” Tenn. Code
Ann. § 40-35-304(c). It also requires that the court “consider the financial resources and
future ability of the defendant to pay or perform.” Id. at (d). To the extent the restitution
amount dictated by section 304 differs from that dictated by section 116, the latter
“contemplates the court establishing the deficiency amount” that “is subject to collection by
execution as in the case of a judgment.” State v. Charles Chesteen, No. E1999-00910-CCA-
R3-CD, 2000 WL 739458, at *12 (Tenn. Crim. App. at Knoxville, June 8, 2000), superseded
by statute as stated in Pauli, No. M2002-01607-CCA-R3-CD, 2003 WL 21302991, at *18;
see also State v. Barbara Ann Riggs, No. E2009-00820-CCA-R3-CD, 2010 WL 2106212,
at *12 (Tenn. Crim. App. at Knoxville, May 26, 2010); State v. Ardie Mae Culbreath, No.
M2007-01157-CCA-R3-CD, 2008 WL 2796467, at *2 (Tenn. Crim. App. at Nashville, July
21, 2008); State v. Patricia White, No. W2003-00751-CCA-R3-CD, 2004 WL 2326708, at
*22 (Tenn. Crim. App. at Jackson, Oct. 15, 2004).

       Although the trial court took evidence and found facts concerning the amount taken
from the victim, it did not consider Appellant’s ability to pay, see Tenn. Code Ann. § 40-35-
304(d), nor did it set a specific amount and time of payment, see id. at (c). Thus, the case
must be remanded for further proceedings.




        1
          To be sure, subsection (c)(7) concerns a relatively limited set of circumstances: work release under
Tennessee Code Annotated section 40-35-315. Section 315 gives a trial court authority to order work release
when the defendant is at the local jail or workhouse pursuant to section 212 (providing for custody of a
defendant while awaiting transfer to the Department of Corrections) as long as “the administrative authority
of the institution has not formulated a program for work release,” id. § 40-35-315(a). However, we are
unable to determine from the record on appeal whether subsection (c)(7) applies here.

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                                      III. Conclusion

        Based upon the record and the parties’ briefs, we conclude that, while the trial court
was empowered to order restitution, it failed to consider Appellant’s ability to pay and did
not set a specific amount and time for payment. We must therefore remand the case for
further proceedings. In addition, we note that the judgment form erroneously states that
Appellant was convicted of a class D felony. Theft of property valued at more than $10,000
is a class C felony. See Tenn. Code Ann. § 39-14-105(4). Upon remand, this error should
be corrected.

                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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