         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 27, 2010

                   STATE OF TENNESSEE v. DONNA HARVEY

                     Appeal from the Circuit Court for Sevier County
                        No. 13202-II    Richard R. Vance, Judge




                No. E2009-01945-CCA-R3-CD - Filed November 9, 2010




J AMES C URWOOD W ITT, J R., J., dissenting.


                The trial court should have rejected the guilty plea as being deficient pursuant
to Tennessee Code Annotated section 40-35-304(g)(1). That subsection provides that when
restitution is a component of alternative sentencing and there is “no sentencing hearing or
presentence report because the defendant’s sentence is agreed upon and the payment of
restitution is a part of the sentence, the plea agreement shall include the amount of restitution
and the other performance requirements set out in subsection (c).” Tenn. Code Ann. § 40-35-
304(g)(1). In a theft case, payment of restitution must be “a part of the sentence” pursuant
to Tennessee Code Annotated section 40-20-116. See id. § 40-20-116(a) (providing that the
trial court “shall . . . order the restitution of the property” in theft cases). In the present case,
the plea agreement left no sentencing issues undecided except for the amount and payment
method of restitution; no presentence report was entered into evidence. Under the
circumstances, the “restitution hearing” was not a “sentencing hearing” as contemplated by
section 40-35-304(g)(1); to say otherwise is to render the provisions of subsection (g)(1)
meaningless. I cannot fathom why the subsection reads the way it does, but it says what it
says.

             Based upon the effect of Code sections 40-35-304(g)(1) and -20-116(a), I
would hold that the trial court was not empowered to accept the guilty plea as proffered.


                                                      ___________________________________
                                                      JAMES CURWOOD WITT, JR., JUDGE
