             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT KNOXVILLE

                                 JUNE 1996 SESSION             FILED
                                                                    April 29, 1997

STATE OF TENNESSEE,                           )                Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
                                              )
                     APPELLANT,               )
                                              )      No. 03-C-01-9504-CR-00118
                                              )
                                              )      Sevier County
v.                                            )
                                              )      Ben W. Hooper, II, Judge
                                              )
                                              )      (Sentencing)
KEVIN CRESPO,                                 )
                                              )
                    APPELLEE.                 )



FOR THE APPELLANT:                                   FOR THE APPELLEE:

Charles W. Burson                                    Kevin Crespo, Pro Se
Attorney General & Reporter                          P.O. Box 155
500 Charlotte Avenue                                 New Market, TN 37820
Nashville, TN 37243-0497                             (Appeal Only)

Michael J. Fahey, II                                 Charles R. Edwards, Jr.
Assistant Attorney General                           Attorney at Law
450 James Robertson Parkway                          129 Commerce Street
Nashville, TN 37243-0493                             Sevierville, TN 37862
                                                     (Trial Only)
Alfred C. Schmutzer, Jr.
District Attorney General
125 Court Avenue, Room 301-E
Sevierville, TN 37862

G. Scott Green
Assistant District Attorney General
125 Court Avenue, Room 301-E
Sevierville, TN 37862




OPINION FILED:________________________________


APPEAL DISMISSED


Joe B. Jones, Presiding Judge

                                  OPINION
       The State of Tennessee appeals from the sentences imposed by the trial court.1

The state contends the trial court abused its discretion by (a) failing to impose the fines

recommended by the jury2 and (b) requiring the defendant to make restitution in an amount

less than the amount of damages found by the jury. 3 After a thorough review of the record,

the brief of the state, and the law governing the issues presented for review, it is the

opinion of this Court the state does not have a right to appeal the issues presented for

review. Therefore, the state's appeal is dismissed.4 It is parenthetically noted that if this

Court could consider the issues presented for review, the Court would affirm the judgment

of the trial court.5




       1
           Tenn. Code Ann. § 40-35-402(d).
       2
        The amount of the fines determined by a jury sets the upper limitation of the fine
a trial court can impose. However, a trial court is not required to impose a fine
notwithstanding the jury has recommended the amount of the fine. The applicable statute,
Tenn. Code Ann. § 40-35-301(b), provides in part: “[T]he jury finding the defendant guilty
shall also fix the fine. . . . The jury shall report such fine with a verdict of guilty. When
imposing sentence, after the sentencing hearing, the court shall impose a fine, if any, not
to exceed the fine fixed by the jury. . . .” (emphasis added).
       3
         In this jurisdiction, a “sentencing court may direct a defendant to make restitution
to the victim of the offense.” Tenn. Code Ann. § 40-35-304(a). However, there is no
designated formula or method for the computation of the amount of restitution. State v.
Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995). The
trial court must consider the “pecuniary loss” incurred by the victim, Tenn. Code Ann. § 40-
35-304(e), as well as “the financial resources and future ability of the defendant to pay or
perform.” Tenn. Code Ann. § 40-35-304(d). The amount determined by the trial court
must be reasonable. Tenn. Code Ann. § 40-35-303(d)(10). Furthermore, “the amount
ordered to be paid does not have to equal or mirror the victim's precise pecuniary loss.”
Smith, 898 S.W.2d at 747.
       4
        The statute which provides the state with the right to appeal sentencing issues,
Tenn. Code Ann. § 40-35-402, limits the right to certain enumerated grounds listed in the
statute. The statute does not provide the state with the right to appeal questions
concerning fines and restitution.
       5
         The presentence report reveals the defendant does not have a high school
diploma. He has worked as a carpenter, and he supported his wife and child. When the
defendant was sentenced, he was not able to work due to an injury to his back. He did not
have any other source of income.
        The state did not offer any evidence to establish the defendant’s financial resources
or ability to pay a fine and restitution. The state did not question the defendant when he
testified at the sentencing hearing.

                                                                               (continued...)

                                             2
                                  _____________________________________________
                                        JOE B. JONES, PRESIDING JUDGE




CONCUR:



______________________________________
       GARY R. WADE, JUDGE



______________________________________
     PAUL G. SUMMERS, JUDGE




                                                                   FILED
                                                                     April 29, 1997

                                                 Cecil Crowson, Jr.
      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                 Appellate C ourt Clerk
                       AT KNOXVILLE


(...continued)
        Based on this evidence, the state has failed to overcome the “presumption that the
determinations made by the [trial] court from which the appeal is taken are correct.” Tenn.
Code Ann. § 40-35-402(d).

                                            3
                                 JUNE 1996 SESSION

STATE OF TENNESSEE,                            )
                                               )
            APPELLANT,                         )
                                               )     No. 03-C-01-9504-CR-00118
                                               )
                                               )     Sevier County
v.                                             )
                                               )     Ben W. Hooper, II, Judge
                                               )
                                               )     (Sentencing)
KEVIN CRESPO,                                  )
                                               )
        APPELLEE.                              )


             SEPARATE CONCURRING AND DISSENTING OPINION


        I concur in the results reached by the majority in this case; however, I must

respectfully disagree with some of the reasoning. The majority parenthetically noted that

if it could consider the state's issues, it would affirm the judgment of the trial court. I agree.

A trial judge has the power to release a defendant from payment of fines, in whole or in

part, pursuant to Tenn. Code Ann. § 40-24-102.6 Also, Tenn. Code Ann. § 40-35-301(b)

supports this proposition. The record reveals that the jury set fines totaling $12,500. The

trial judge waived the entire amount of fines imposed against the appellant. I believe this

was the judge's prerogative.



        Also, a trial judge may direct the payment of restitution to the victim as a condition

of probation pursuant to Tenn. Code Ann. § 40-35-304. This Court has held that when

restitution is ordered as a condition of probation, the authority to determine the

appropriateness and the amount of restitution lies solely with the trial court. State v.

McKinney, 1994 WL 592042 (Tenn. Crim. App. Oct. 26, 1994). The trial judge reduced

the amount of restitution awarded by the jury. This action was the judge’s prerogative.



        The majority concludes that the state does not have a right to appeal questions

concerning fines and restitution. Such holding is based upon the language of Tenn. Code


        6
          Release of fines and forfeitures- The seve ral courts in which a cause is finally adjudged are authorized,
either before or after final judgment, for good cause, to release the defendants, or any one (1) or more of them,
from the whole or any part of fines or forfeitures accruing to county or state. Tenn. Code Ann. § 40-24-102 (1990).



                                                         4
Ann. § 40-35-402, which limits the state's right to appeal to certain enumerated grounds.

Questions concerning fines and restitution are not explicitly listed in the statute. It is with

this issue that I respectfully disagree with my colleagues.



       The first sentence of Tenn. Code Ann. § 40-35-402 states: "[t]he district attorney

general in a criminal case may appeal from the length, range or manner of the service of

the sentence imposed by the sentencing court." Tenn. Code Ann. § 40-35-402(a) (1990).

Our Supreme Court has stated that the term "range of punishment" refers to a fine in

excess of fifty dollars. State v. Bryant, 805 S.W.2d 762, 765 (Tenn. 1991). Based upon

this, I find that questions concerning fines and restitution are encompassed in the broad

language of Tenn. Code Ann. § 40-35-402. I find that the state does have a right to appeal

questions concerning fines and restitution.




                                           __________________________
                                           PAUL G. SUMMERS, Judge




                                              5
