          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                       JANUARY SESSION, 1997


                                                        FILED
STATE OF TENNESSEE,        )                          July 18, 1997
                           )    No. 02C01-9610-CR-00348
      Appellee             )                        Cecil Crowson, Jr.
                           )    SHELBY COUNTY       Appellate C ourt Clerk
vs.                        )
                           )    Hon. BERNIE WEINMAN, Judge
HEATHER R. DOWDY,          )
                           )    (Aggravated Burglary;
      Appellant            )    Theft of property worth less
                                than five hundred dollars)


For the Appellant:              For the Appellee:

R. PORTER FEILD                 CHARLES W. BURSON
Burch, Porter & Johnson         Attorney General and Reporter
130 North Court Avenue
Memphis, TN 38103
                                LISA A. NAYLOR
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                WILLIAM GIBBONS
                                District Attorney General

                                P. T. HOOVER
                                Asst. District Attorney General
                                201 Poplar Avenue, 3rd Floor
                                Memphis, TN 38103




OPINION FILED:

REMANDED



David G. Hayes
Judge
                                     OPINION



      The appellant, Heather R. Dowdy, pled guilty in the Shelby County

Criminal Court to one count of aggravated burglary, a class C felony, and two

counts of theft of property valued less than five hundred dollars, class A

misdemeanors. Pursuant to the plea agreement, the trial court imposed

concurrent sentences of three years incarceration in the county workhouse for

the burglary conviction and eleven months and twenty-nine days incarceration in

the county workhouse for each of the theft convictions. Following a sentencing

hearing, the trial court suspended the sentences, except for one hundred and

eighty days to be served on weekends. Additionally, the trial court imposed six

years of intensive probation. The conditions of probation included restitution in

the amount of $7,200.00, to be paid in monthly installments of $100.00, one

hundred hours of community service, and a 9:00 p.m. curfew.



       On April 26, 1996, the appellant filed a motion pursuant to Tenn. R. Crim.

P. 35(b) for reduction of her sentence. On May 10, 1996, the trial court denied

the appellant’s motion. The appellant now appeals the trial court’s denial of her

motion and also appeals pursuant to Tenn. Code Ann. § 40-35-401 (1990).

Specifically, the appellant challenges the amount and terms of restitution and,

consequently, the length of her probationary period; the imposition of a 9:00 p.m.

curfew; and the requirement of drug testing and counseling.



                             I. Factual Background

      On March 29, 1996, the trial court conducted a hearing in order to

determine the manner of service of the appellant’s sentences. The appellant

testified that she was employed by a company called “We Rep You Advertising

Agency.” She worked four days each week and was paid $5.00 per hour. She

further testified that she had only completed the ninth grade in school but had


                                         2
obtained a GED. The appellant resides with her current boyfriend, who owns a

small business.



        The appellant’s criminal record consists of a 1992 conviction for disorderly

conduct and public intoxication, a 1991 conviction for DUI, and a 1991 conviction

for a traffic offense. She was placed on probation pursuant to the DUI

conviction. Her probation was revoked following her conviction for disorderly

conduct and public intoxication. Additionally, the appellant admitted to the pre-

sentence investigator that she had previously experimented with marijuana and

cocaine.1 At the hearing, the appellant reaffirmed her guilt of the instant

offenses and asserted that she accepted responsibility for her crimes. She

recounted that her co-defendant, Scott Marino, had been her boyfriend at the

time of these offenses. She explained that she and Marino decided to commit

the burglaries or thefts because they were unemployed and needed money. The

appellant testified that Marino had previously been convicted of burglary and was

convicted of burglary in this case.2 Finally, she further asserted that her

boyfriend was abusive and was the principle actor in the commission of these

crimes.



        The appellant testified at the hearing that she could probably pay $100.00

per month toward restitution to the victims. The victim impact statements

included in the record indicate that, with respect to the misdemeanor theft

convictions, the appellant stole jewelry and silver flatware worth approximately

$7,606.00 from her aunt, Jane Graham. Douglass Curry, the appellant’s step-

father and the victim of the second theft, indicated that he did not want restitution

from the appellant and declined to state the value of any property stolen from


        1
         The appellant also indicated that she drank heavily for approximately one year at the age
of nineteen. She asserted that she no longer abused alcohol or drugs.

        2
         The pre -senten ce rep ort indicates that the appellant’s c o-defendant wa s senten ced to six
years incarceration, presumably in the Department of Correction. The appellant testified that
Marino is currently serving his sentence.

                                                  3
him by the appellant. With respect to the felony burglary conviction, the victim

Patti Ramsey reported that the appellant stole property worth approximately

$3,465.37.



                                             II. Analysis

        Pursuant to Tenn. Code Ann. § 40-35-401(d) (1990), review by this court

of the manner of service of a sentence is de novo with a presumption that the

determination made by the trial court is correct.3 This presumption only applies,

however, if the record demonstrates that the trial court properly considered

sentencing principles and all relevant facts and circumstances. State v. Ashby,

823 S.W.2d 166, 169 (Tenn. 1991). In any event, the appellant bears the

burden of establishing that the sentences imposed by the trial court are

erroneous. State v. Lee, No. 03C01-9308-CR-00275 (Tenn. Crim. App. at

Knoxville, April 4, 1995).



        At the conclusion of the sentencing hearing, the trial court stated:

        I'm going to place you on six years probation; restitution at a
        hundred dollars a month. As part of that probation you are to serve
        180 days at the Shelby County Correctional Center starting at 7:00
        p.m. on Friday until 7:00 p.m. Sunday, every weekend -- so you
        can continue to work and make this restitution. In addition, do a
        hundred hours of community service. That's intensive probation
        and that's a 9:00 p.m. curfew.



         The appellant challenges the conditions of her probation, i.e. the terms

and amount of restitution, the imposition of a curfew, and mandatory drug

testing.




        3
          Again, the app ellant also challenges the trial co urt’s denial of her m otion p ursuan t to
Tenn. R. Crim. P. 35(b) for reduction of her sentence. In contrast to the standard of review
applicable to sentencing appe als perfected pursu ant to Tenn. C ode An n. § 40-35-401 (d),
app ellate review o f Ru le 35(b) rulings is g overned by the “a bus e of d iscre tion” stand ard. State v.
Irick, 861 S.W .2d 375, 376 (T enn . Crim . App . 1993); State v. Burden, No. 02C01-9509-CC-00267
(Tenn. Crim. App. at Jackson, February 5, 1997). Clearly, therefore, a determination of the
app ellant’s T enn . Code A nn. § 40-3 5-40 1(d) app eal will also resolve her R ule 35 (b) appe al.

                                                     4
                      A. Imposition of Special Conditions



       First, we review the appellant’s claim that the trial court’s imposition of a

9:00 p.m. curfew is improper. The appellant contends that the curfew is “unduly”

restrictive of her liberty. Tenn. Code Ann. §40-35-303(d)(9). Specifically, the

appellant contends that, as a result of the curfew, she is unable to accept full-

time employment at a convenience store at night. However, the Probation Order

clearly authorizes the appellant’s probation officer “to give permission for night

employment if necessary.” In light of the probation officer’s authority, we do not

find that the conditions of the appellant’s probation are unduly burdensome.

Moreover, should the appellant encounter insurmountable obstacles in

complying with the conditions of her probation, Tenn. Code Ann. §40-35-308

(1990) permits the appellant or her probation officer to apply to the trial court for

the modification or removal of any condition.



       With respect to the appellant’s challenge to conditions of her probation

relating to drug testing and counseling, the record before this court does not

reflect that any such conditions were imposed by the trial court. Therefore, we

are unable to consider this issue. See Tenn. R. App. P. 24(b) (it is the

appellant’s obligation to have prepared an adequate record in order to allow

meaningful review on appeal).




                                   B. Restitution



       The appellant challenges the trial court’s imposition of restitution in the

amount of $7,200.00, to be paid in monthly installments of $100.00. She argues

that the trial court, in imposing restitution, did not adequately account for her

ability to pay or her co-defendant’s participation in the crimes. Moreover, she


                                          5
contends that, because the trial court did not consider these factors in imposing

restitution, it could not impose a probationary period of six years in order to

accommodate the payment schedule.



       Tenn. Code Ann. § 40-35-304(a) (1996 Supp.) authorizes the sentencing

court to impose restitution as a condition of probation. Tenn. Code Ann. §40-35-

304(c) provides that a court must establish a restitution payment schedule that

does not extend beyond the maximum term of probation supervision that could

have been imposed for the offense. A court may place a defendant on

supervised probation for a period of time up to and including the statutory

maximum time for the class of conviction offense. Tenn. Code Ann. §40-35-

303(c). Thus, the trial court was authorized to impose a probationary period of

six years for the offense of aggravated burglary and extend the appellant’s

restitution payments for this crime over that time. See 40-35-111(b)(3) (1990).



       With respect to the appellant’s contention that the order of restitution fails

to account for her co-defendant’s proportionate liability, we disagree. In

essence, the appellant asks that we adopt some form of comparative fault for the

purpose of determining restitution in criminal cases. This we decline to do.

While this court has tacitly acknowledged the trial court’s authority to impose joint

and several liability for restitution upon co-defendants, see, e.g., State v.

Roberts, No. 01C01-9410-CC-00332 (Tenn. Crim. App. at Nashville, March 10,

1995), and State v. Akins, No. 134 (Tenn. Crim. App. at Knoxville, June 28,

1991), the 1989 Sentencing Act does not require the division of restitution

responsibility. In any case, we recognize that the policy expressed by the

legislature in the 1989 Sentencing Act is that the punishment imposed should fit

the crime and the offender. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1996). See also Johnson, No. 03C01-

9606-CC-00214(restitution is not only a means of compensating the victim, but


                                          6
also a form of punishment). In the context of this policy, the appellant

acknowledged at the sentencing hearing that she was a full participant in the

burglary. Moreover, the record does not reflect that the co-defendant, Marino,

was convicted for the incidents resulting in the appellant’s theft convictions.



        Next, the appellant argues that the trial court failed to consider her ability

to pay in awarding restitution. The record reflects that the appellant is a single

person who lives with her boyfriend and currently earns $5.00 per hour. The

appellant testified at the hearing that she could make scheduled restitution

payments of “probably about a hundred dollars a month.” Based on these facts,

the trial court ordered restitution payments of $100.00 per month. The appellant

offered no other proof at the hearing relating to her ability to pay. We find this

issue without merit.



        In performing our review of the issues in this case, we are constrained to

note that the trial court, in ordering restitution, combined the pecuniary losses of

both victims into one payment and ordered that this amount be repaid over the

seventy-two month period of supervision for the aggravated burglary conviction.

This, in effect, permitted the restitution for the misdemeanor conviction to be

repaid over a six year period.4         The plain language of our statute requires that

restitution as a condition of probation be related to the offense that warrants the

probation. See Tenn. Code Ann. § 40-35-304(a). In other words, the trial court

cannot order a restitution payment schedule extending beyond the statutory

maximum term for the offense occasioning the restitution, or attach the

restitution schedule to an unrelated offense. Moreover, the proof in the record

pertaining to the losses of the two victims conflicts with that amount set by the




        4
          The a ppellant’s plea bargain agre em ent perm itted her to plead to m isdem eanor theft
which involved a loss from the victim, Jane Graham , of $7607.00. As previously noted, the
second misdemeanor theft involved the victim’s stepfather and no restitution was sought. The
burglary conviction involved the victim, Patti Ramsey, and restitution of $3590.37.

                                                  7
trial court5 and there is no apportionment of the restitution between the two

victims. Accordingly, we find it necessary to remand this case for a

determination of the amount of restitution applicable to each offense, the

imposition of payment schedules in accordance with this opinion, and a

determination of the appropriate probation period.6              7




        Notwithstanding our decision to remand, we also note that the victim

impact statements, included in the record, reflect that the property stolen from

Ms. Graham and Ms. Ramsey was insured and that their respective insurance

companies have paid these claims. Whether or not an insurance company is a

"victim" contemplated by the legislature in providing for repayment of restitution

to "victims", see Tenn. Code Ann. § 40-35-304, is currently pending before our

supreme court. Thus, although this court has held an insurance company to be

a victim for purposes of restitution, this issue may be moot dependant upon the

decision of our supreme court. See State v. Alford, No. 02C01-9509-CC-00281

(Tenn. Crim. App. at Jackson, Sept. 30, 1996), perm. to appeal granted, (Tenn.

Apr. 14, 1997).



        For the foregoing reasons, this case is remanded consistent with this

opinion.




        5
           The victim impact statements revealed that Jane Graham sustained a loss of $7,606.00,
while Patti Ramsey suffered losses amounting to $3590.37, a total of $11,196.37. Apparently, the
trial court acc epte d the State 's argum ent in determ ining the am oun t of res titution. The S tate
argued that Graham sustained a loss of $3700 and Ram sey, a loss of $3590.37, totaling
$7290.37.

        6
         The trial court may conclude that a probationary period of six years for the aggravated
burglary offense is still appropriate. However, it must base its determination on factors other than
the payment schedule for restitution to victims of another offense.

        7
          W e would note that m any of the pro blem s presente d in this case could be elim inated by
carefully constructed plea agreements.

                                                  8
                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



__________________________________
PAUL G. SUMMERS, Judge


__________________________________
THOMAS T. WOODALL, Judge




                               9
