        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs June 17, 2014

               STATE OF TENNESSEE v. JANET LYNN JARED

                 Appeal from the Criminal Court for Putnam County
                        No. 08-0875 David Patterson, Judge




                 No. M2012-01739-CCA-R3-CD - Filed July 29, 2014




Appellant, Janet Lynn Jared, was convicted of theft over $10,000. She was sentenced to six
years, with the sentence to be served on probation if she paid restitution of over $82,000 to
her victims. To satisfy the judgment, she sold the family farm, but the sale resulted in net
proceeds of only about $48,000. The State subsequently filed a motion to order that the
remaining amount of restitution be paid. After several hearings, the Criminal Court ordered
that Appellant pay the remainder of her obligation at the rate of $500 a month. Appellant
does not challenge the amount of restitution ordered by the Criminal Court, but she contends
on appeal that the Court erred by ordering a payment schedule without considering her means
and ability to pay, in violation of Tennessee Code Annotated section 40-35-304(d). The State
asks us to dismiss this appeal because under Tennessee Rule of Appellate Procedure 3(b)
there is no appeal as of right from a decision to modify the conditions of probation. We
agree with the State. This appeal is dismissed.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.

John Phillip Parsons, Cookeville, Tennessee, for the appellant, Janet Lynn Jared.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Randy York, District Attorney General; and Beth Willis, Assistant District Attorney
General, for the appellee, State of Tennessee.



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                                               OPINION

                                          Factual Background

        On August 28, 2009, Appellant pled guilty in the Criminal Court of Putnam County
to theft of over $10,000 from her former employers. She was sentenced to six years, to be
served on supervised probation and was ordered to pay restitution in the amount of money
stolen. The judgment form indicated that Appellant had stolen “$60,000 or more” over a
period of two years. The restitution to be paid to the victims amounted to $82,742.63. The
judgment form also recited as a “special condition” that Appellant “make every effort to
obtain a second mortgage on the family farm in order to pay the restitution in full or she will
confess judgment of restitution amount in the civil action and will not resist or hinder
collection efforts including sale of the family farm if required.”

        As the above condition suggests, Appellant’s victims brought a civil action against
her for damages arising from the same conduct that led to her criminal offense. That action
was filed in the White County Chancery Court.1 Although the civil case is separate from the
criminal prosecution, the judgment in the civil case was a factor in the subsequent Criminal
Court proceedings involving the calculation of the amount of restitution owed.

       Appellant’s husband, David Jared, was named as a co-defendant in the civil case, but
criminal charges were not brought against him.2 After a trial, the Chancery Court entered a
judgment against the defendants for compensatory damages in the amount of $152,620,
“which includes the restitution amount required from defendant Janet Jared in her Criminal
Court judgment.” The court declared that $27,217.56 of that amount was chargeable to
David Jared. The remainder, $125,402.44, was chargeable to Appellant.3

        The family farm was sold on August 18, 2011. The net proceeds of $48,512.69 were
paid to the victims through the Chancery Court. On March 30, 2012, the State filed a notice
that it was putting the criminal matter back on the Criminal Court docket to review
Appellant’s compliance with the payment of restitution, to calculate the amount still owed,


        1
            Appellant’s family farm was located in White County.
        2
         The record shows that Appellant and David Jared were in the midst of divorce proceedings
while their legal obligations to the victims were being adjudicated.
        3
        The compensatory damages included consequential and incidental damages. The Chancery
Court awarded an additional $50,000 in punitive damages. David Jared paid his civil damages in full,
along with interest. A satisfaction of judgment in his favor was signed and filed in the Chancery Court
on November 6, 2010.

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and to determine the schedule for a further payment of restitution.

        The court conducted a hearing on May 22, 2012. Appellant contended during the
hearing that both the proceeds from the sale of the farm and the satisfaction of David Jared’s
judgment should count towards Appellant’s restitution obligation. The State argued that
David Jared’s payment could not be used to discharge Appellant’s obligation to the Criminal
Court. Because the orders resulting from the White County Chancery Court proceedings had
not yet been filed in the Criminal Court, the Criminal Court continued the hearing to give the
parties the opportunity to submit documents to resolve the questions that had been raised.

        On July 12, 2012, the State filed a Motion to Order Restitution and attached copies
of the orders of the White County Chancery Court as exhibits. The State conceded that
Appellant’s payment of $48,512.69 into the Chancery Court should count towards the
restitution ordered by the Criminal Court but argued that since David Jared was never
charged criminally, Appellant should not benefit from his payment on the civil judgment.
The State also asserted that Appellant had not paid anything to the victims aside from the sale
proceeds and calculated that the remaining restitution in the case was $34,229.94, which it
asked to be paid at the rate of $500 a month.

       The Criminal Court heard the State’s motion on July 24, 2012. Appellant’s attorney
asked to be allowed to file a response to the motion and agreed to submit it within five days.
However, no such response is found in the appellate record. On August 1, 2012, the
Criminal Court filed an order announcing its decision. The order declared that “[t]he
attorneys for the State and the Defendant filed documents to assist the court in its
determination,” but the order did not identify those documents. The Court ruled that
Appellant’s payment towards the civil judgment was a partial satisfaction of the restitution
ordered, that Appellant still owed $34,229.94, and that it was to be paid to the Clerk of the
Criminal Court “at a rate of $500 each month until full restitution is made.” 4 This appeal
followed.

                                                Analysis

        Tennessee Code Annotated section 40-35-303(d)(10) gives the sentencing court the

        4
         The Criminal Court may order that the restitution be paid in installments, but it may not
establish a payment schedule that extends “beyond the maximum term of probation supervision that
could have been imposed for the offense.” T.C.A. § 40-35-304(c). Since Appellant’s probation only had
about three more years to run, the Court’s order that she continue making payments “until full restitution
is made” may be unrealistic. However, if the time of payment expires before full restitution is made, the
victim or the victim’s beneficiary may apply to an appropriate civil court to have the unpaid balance
converted into a civil judgment. T.C.A. § 40-35-304(h).

                                                   -3-
authority to make payment of restitution to the victim of an offense a condition of probation.
Tennessee Code Annotated section 40-35-304 sets out the procedure and standards for the
court to follow when ordering restitution. The restitution must be based on the nature and
amount of the victim’s pecuniary loss. T.C.A. § 40-35-304(b). Further, “[i]n determining
the amount and method of payment or other restitution, the court shall consider the financial
resources and future ability of the defendant to pay or perform.” T.C.A. § 40-35-304(d).

        Appellant argues that the Criminal Court erred by not inquiring into her financial
resources or her future ability to pay, as required by Tennessee Code Annotated section 40-
35-304(d), before it ordered her to pay her remaining obligation at the rate of $500 a month.
She asks us to remand this case so the Criminal Court can conduct such an inquiry. The State
urges us to dismiss this appeal, asserting that an order modifying the conditions of probation
is not appealable as of right.

        The State notes that while an original judgment imposing restitution as a condition of
probation could have been appealed before the judgment became final, the Tennessee
Supreme Court has determined that the same is not true of an order modifying the conditions
of probation. In State v. Lane, 254 S.W.3d 349 (Tenn. 2008), the Supreme Court noted that
such orders are not on the list of appealable judgments and orders in criminal actions set out
in the Tennessee Rules of Appellate Procedure. See Tenn. R. App. P. 3(b). The Court
applied the Latin maxim of “expressio unius est exclusio alterius,” meaning, “the expression
of one thing implies the exclusion of things not mentioned,” to conclude that a party who
filed a motion to reduce her monthly restitution payment was not entitled to appeal the trial
court’s denial of that motion. Lane, 254 S.W.3d at 353. The State contends that the same
principle applies in this case. We find that the State’s argument is well taken and that this
appeal must be dismissed.

                                        Conclusion
       We dismiss this appeal.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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