         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 9, 2002

                STATE OF TENNESSEE v. BRENDA MCKENZIE

                  Direct Appeal from the Circuit Court for Chester County
                           No. 01-116    Donald H. Allen, Judge



                  No. W2001-03061-CCA-R3-CD - Filed December 13, 2002


The appellant, Brenda McKenzie, pled guilty in the Chester County Circuit Court to one count of
facilitating the manufacture of methamphetamine and one count of possession of anhydrous
ammonia, both Class E felonies. The plea agreement provided for concurrent sentences of two years
to be served on community corrections. The appellant moved the trial court to waive or suspend the
mandatory fines on both offenses. The court denied the motion and the appellant now appeals.
Upon review of the record and the parties’ briefs, we affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Lloyd R. Tatum, Henderson, Tennessee, for the appellant, Brenda McKenzie.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; Jerry
Woodall, District Attorney General; and Kevin Youngberg and Shaun A. Brown, Assistant District
Attorneys General, for the appellee, State of Tennessee.

                                            OPINION

                                        I. Factual Background
                 The appellant was originally indicted for the manufacture of methamphetamine,
possession of anhydrous ammonia, and possession of drug paraphernalia. Subsequently, she pled
guilty to the facilitation of the manufacture of methamphetamine and to the possession of anhydrous
ammonia. Pursuant to the plea agreement, the appellant was sentenced as a standard Range I
offender to two years for each conviction with the sentences to be served concurrently. Additionally,
the agreement provided that the appellant’s sentence would be served on community corrections.
Finally, the agreement required the appellant to pay a mandatory fine of two thousand dollars
($2000) for the facilitation conviction and a mandatory fine of one thousand dollars ($1000) for the
possession conviction. See Tenn. Code Ann. § 39-17-428(b)(9) and (12) (Supp. 2002).
                 Subsequently, the appellant moved to waive or suspend the mandatory fines,
contending that the fines would impose “severe economic hardship” on her. At the hearing on this
motion, the appellant testified that she had limited resources and after payment of her bills she was
“struggling.” Specifically, the appellant testified that she “brings home two fifty a week, and I have
a lot of bills.” Regardless, the trial court found that the appellant was regularly paying the seventy-
five dollars ($75) per month imposed by the court toward payment of her appointed attorney.
Accordingly, the court noted that after the appellant paid those costs, she should be able to continue
paying seventy-five dollars ($75) per month toward her fines. However, the court also noted that
it would revisit the issue if the appellant’s financial situation changed or if she continued to have
difficulty making the payments after completing her community corrections sentence.

                                             II. Analysis
               Initially we note that “the decision of whether to grant a waiver of [fines] . . . rests
within the court’s discretion; and that decision cannot be reversed in the absence of evidence in the
record which indicates that ‘such discretion has been explicitly abused to the great injustice and
injury of the party complaining.’” State v. Black, 897 S.W.2d 680, 684 (Tenn. 1995) (quoting
Douglas v. Estate of Robertson, 876 S.W.2d 95, 97 (Tenn. 1994)). Specifically, the appellant
contends that the trial court should have suspended or waived the mandatory fines pursuant to
Tennessee Code Annotated section 39-17-428(d)(1) because the fines imposed severe economic
hardship upon the appellant and her family. The statute in question provides:
               Unless the judge, using the applicable criteria set out in § 40-14-
               202(c), determines that a person convicted of violating this section is
               indigent, or that payment of the minimum fine would result in a
               severe economic hardship, or such fine would otherwise not be in the
               interests of justice, the minimum fines imposed by this section shall
               be mandatory and shall not be reduced, suspended, waived or
               otherwise released by the court.
Tenn. Code Ann. § 39-17-428(d)(1).

               As we earlier stated, a brief evidentiary hearing was held on the appellant’s motion.1
At the hearing, the appellant testified regarding her financial situation. At the conclusion of the
December 17, 2001, hearing, the trial court found:
               [The appellant] appeared before The Court back in August of this
               year. She was not able to hire her own attorney, and at that time The
               Court found that she was partially indigent and was not able to hire
               her own attorney. . . . She was working and . . . bringing home . . .
               $250.00 a week. That was her take-home pay each week. And

         1
            The record reflects that there were actually two motions heard by the trial court relating to this same issue;
one motion was heard on November 30, 2001, and the other was heard on December 17, 2001. Subsequently, the trial
court issued one w ritten ord er denying both motions. The trial court’s order was dated December 31, 2001, and was filed
on January 7, 2002. The ap pellant’s notice of appeal, which refers to a November 30, 2001, judgment, was dated
December 19, 20 01. N evertheless, “[a] prematurely filed notice of appeal shall be treated as filed after the entry of the
judgment from which the appeal is taken and on the day thereof.” Tenn. R. App. P. 4(d).

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                because of that, The Court felt like she could pay at least some partial
                reimbursement for her Court appointed counsel. . . . The Court
                ordered her to pay that at a rate of $75.00 per month. She has been
                making those regular payments, it appears. . . .

                . . . Now, it was part of the plea agreement that she would pay her
                fines and Court costs at a rate of $75.00 per month. And I assume
                that she can make those payments because she’s been paying to the
                Clerk’s Office $75.00 a month on her court appointed counsel fees.

                Now, at this time, The Court does not feel like she’s indigent and not
                able to pay these fines.

The trial court also stated that it would reevaluate the situation if the appellant had not paid her fines
by the end of her two-year community corrections sentence. We agree with the trial court that the
appellant has demonstrated an ability to pay seventy-five dollars per month ($75) toward court-
appointed attorney’s fees and should be able to continue those payments toward the satisfaction of
her fines. The trial court carefully considered the appellant’s financial circumstances and the
sentencing principles. While the appellant’s ability to pay a fine is a factor to be considered, it is not
necessarily a controlling factor. See State v. Patterson, 966 S.W.2d 435, 446 (Tenn. Crim. App.
1997). In other words, “a significant fine is not automatically precluded just because it works a
substantial hardship on a defendant – it may be punitive in the same fashion incarceration may be
punitive.” State v. Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993). Moreover, as the trial
court noted, the court retains jurisdiction to modify the fines even after the final judgment. See
Tenn. Code Ann. § 40-24-102 (1997). Thus, we conclude that the trial court did not abuse its
discretion in failing to waive or suspend the mandatory fines imposed upon the appellant. See State
v. Cecelia M. Beasley, No. 01C01-9801-CR-00018, 1998 Tenn. Crim. App. LEXIS 965, at *10
(Nashville, Sept. 16, 1998). This issue is without merit.

                                          III. Conclusion
                Finding no error, we affirm the judgment of the trial court.




                                                         ___________________________________
                                                         NORMA McGEE OGLE, JUDGE




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