        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

                       FEBRUARY SESS ION, 1997
                                                       FILED
                                                          May 14, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

STATE OF TENNESSEE,             )   C.C.A. NO. 03C01-9608-CR-00300
                                )
      Appellee,                 )
                                )   SULLIVAN COUNTY
V.                              )
                                )   HON. R. JERRY BECK, JUDGE
JOH N MIL LER , JR.             )
                                )   (FELONY RECKLESS
      Appe llant.               )   ENDANGERMENT)




FOR THE APPELLANT:                  FOR THE APPELLEE:

LAURA RULE HENDRICKS                JOHN KNOX WALKUP
Eldridge, Irvine & Hendricks        Attorney General & Reporter
606 W. Main Street, Suite 350
P.O. Box 84                         MICH AEL J. F AHEY , II
Knoxville, TN 37901-0084            Assistant Attorney General
(On App eal Only)                   450 James Robertson Parkway
                                    Nashville, TN 37243-0493

STEPHEN M. WALLACE                  GREELEY WELLS
District Public Defender            District Attorney General

TERR Y L. JOR DAN                   I.T. COLLINS, JR.
Assistant Public Defender           Assistant District Attorney General
P.O. Box 839                        P.O. Box 526
Blountville, TN 37617-0839          Blountville, TN 37615-0526
(At Tr ial and On A ppea l)




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

                                OPINION
              The Defen dant, Joh n Miller, Jr., appeals as of right p ursua nt to R ule

3 of the Tennessee Rules of Appellate Procedure from the trial court’s order

denying his “Motion for Relief from Fine and Court Costs”. We affirm the

judgm ent of the tria l court.



              The Defendant was indicted by the grand jury of Sullivan County for

the offense o f reckless endan germe nt. Following a jury trial, he w as foun d guilty

as charged and the trial court sentenced the Defendant to serve two (2) years in

the Tennessee Department of Correction. In addition, the Defendant was fined

$500.00 and ordered to pay court costs.           The sentence was imposed and

judgment was e ntered on Ap ril 13, 1995. The Defenda nt appealed to this Court

from the judgment of the trial court entered on April 13, 1995, challenging the

sufficiency of the evidence to support his conviction and arguing that the

sentence was excessive. The judgment of the trial court regarding his conviction

and sentencing was affirmed in an opinion released by this Court on March 11,

1997. State v. John M iller, Jr., No. 03C01-9512-CC-00382, Sullivan C ounty

(Tenn. C rim. App., Kno xville, filed March 11, 1997 ).



              On February 14, 1996, the Defendant filed with the trial court o f

Sullivan County a “Motion for Relief from Fine and Court Costs,” requesting the

trial court to “susp end th e fine and court costs in this matter.” Following a

hearing, the trial court denied the motion and Defendant filed a timely appeal

from tha t order.




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              In regard to the Defendant’s motion as it pertained to the court costs,

we recognize that Tennessee Code Annotate d section 40-25-129 provides

certain exceptions to the general rule that a Defendant convicted of a criminal

offense must pay all of the court costs. One of the exceptions is where the

Defendant has been con victed in a court of record and the trial court has made

a findin g at “an y evide ntiary h earing that the defen dant is indigent and remains

indigent at the time of conviction .” Id. Whether or not the motion as it pertained

to the cour t costs wa s filed too late to be considered by the trial court, our

Supreme Court has held that the mere fact a defe ndant is indigent does not

require the trial court to waive paym ent of court costs by th e defen dant. State v.

Black, 897 S.W .2d 680, 683 (Tenn. 199 5). Furthermo re, the Suprem e Court in

Black held, “Th e dec ision of w hethe r to gran t a waive r of cos ts still rest s within

the [trial] court’s discretion; and that decisio n can not be revers ed in the absence

of evidence in the record which indica tes tha t ‘such discre tion ha s bee n explic itly

abused to the great injustice and injury of the party complaining.’” 897 S.W.2d at

684.



              At the hearing on the Motion for Relief from Fine and Court Costs,

the total amo unt of fine and costs owed as of the date of the hearing was

$1,147.00. Prior to incarceration, the Defenda nt was re ceiving S ocial Sec urity

paym ents in the amount of $900.00 per month. He wa s mist aken ly paid during

the time he was incarcerated in the amount of $6,300.00. When the mistake was

found, he was required to repay the $6,300.00. Defendant was a ppare ntly able

to make a lump sum payment of approximately $3,000.00, with the balance of

$3,300.00 to be paid over a period of time by a $100.00 reduction per m onth in

the bene fit payme nts to him . The D efenda nt was u nable to satisfa ctorily ex plain

                                           -3-
to the trial court what he had purchased or how he had otherwise disposed of the

$3,300 .00 which he could not pay back to Social Security in a lump sum

paym ent.    The trial court decided that the Defendant had the burden of

establishing his inability to pay the court costs. After a thorough review of the

record, we are un able to hold that the trial court abused its discretion in denying

the Defendant’s motion to waive the court costs.



              A fine imposed upon a Defendant following conviction is a part of the

sentence receive d by the Defe ndan t, and a s our S uprem e Cou rt held in State v.

Bryant, 805 S.W .2d 762 , 765, (Te nn, 199 1). “It is clear that the trial judge has

the power to impo se any fine which does not exc eed the fine fixed by the jury,

and to reduce, suspend, or release fines.” The Defendant, on the direct appeal

from his conviction, did not challenge the fine.



              Rule 35 of the Te nnessee Rules of Crim inal Procedu re allows a trial

court to reduce a sentence for a defendant sentenced to the Tennessee

Department of Correction, but a motion to the court to reduce the sentence under

Rule 35 mu st be filed w ithin 120 days after the date the sentence is imposed.

The Rule spec ifically provides that “[no] extension shall be allowed on the time

limitation.” T.R.C r.P. 35. Since a fine is a part o f the sente nce, State v. Bryant,

id. applic ation fo r a redu ction in the fine mus t be filed within 1 20 da ys. In this

case, the application was filed approximately six (6) months after the deadline

impos ed by R ule 35 of th e Ten nesse e Rules of Crimin al Proce dure.



              Howeve r, Tennessee Code Annotated section 40-24-102 provides

that there is no deadline for a Defenda nt to seek relief from th e trial court

                                          -4-
regarding reduction of a fine. Under this statute, a fine can be released in who le

or in part only for good c ause. For the reasons state d above in this opinion, we

hold that the Defendant did not meet his burden of establishing good cause for

his fine to be reduce d.



             We therefore affirm the ju dgme nt of the trial co urt.



                                 ____________________________________
                                 THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




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