            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT KNOXVILLE               FILED
                         MARCH 1998 SESSION
                                                      September 9, 1998

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 03C01-9709-CR-00417
            Appellee,           )
                                )    KNOX COUNTY
VS.                             )
                                )    HON. MARY BETH LEIBOWITZ,
RUSSELL A. BURRIS,              )    JUDGE
                                )
            Appellant.          )    (Resentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:


ROBERT T. VAUGHN                     JOHN KNOX WALKUP
       -and-                         Attorney General & Reporter
JERRED A. CRESSY
176 Second Ave., North               ELIZABETH B. MARNEY
Suite 500                            Asst. Attorney General
Nashville, TN 37201                  John Sevier Bldg.
                                     425 Fifth Ave., North
                                     Nashville, TN 37243-0493

                                     RANDALL E. NICHOLS
                                     District Attorney General

                                     ROBERT L. JOLLEY, JR.
                                     Asst. District Attorney General
                                     City-County Bldg.
                                     Knoxville, TN 37902




OPINION FILED:____________________



AFFIRMED IN PART, REVERSED AND MODIFIED IN PART

JOHN H. PEAY,
Judge
                                      OPINION


              This is the second appeal in this case. The defendant contends that the

trial court erred in sentencing him to a term of confinement rather than probation. The

defendant also contends that the trial court erred in ordering him to pay restitution in

conjunction with a sentence of confinement. We affirm the defendant’s sentence of

confinement, but reverse the trial court’s restitution order.



              In 1995, the defendant pled guilty to voluntary manslaughter committed in

1980. After a hearing, the trial court sentenced him to an indeterminate sentence of four

to ten years, the first thirty days to be served in the county jail, the next five months on

work release, and the remaining nine years and six months on probation. As a condition

of probation, the trial court ordered the defendant to pay restitution of approximately

ninety-five thousand dollars ($95,000) in monthly installments. In the defendant’s first

appeal, he challenged the trial court’s order of restitution, arguing inter alia that the trial

court lacked the authority to order restitution in a voluntary manslaughter case and that

the trial court erred in determining the amount of restitution. The State challenged the

defendant’s split sentence. Applying the law in effect at the time the offense was

committed, this Court determined that the defendant’s split sentence was illegal and held

that the trial court’s choices in sentencing the defendant were either incarceration or

probation, but not both. State v. Burris, 950 S.W.2d 42, 43 (Tenn. Crim. App. 1996).

This Court also held that restitution may be ordered in a voluntary manslaughter case as

a condition of probation so long as the amount is reasonably and realistically linked to the

defendant’s ability to pay. Id. Subject to these holdings, this Court remanded the case

back to the trial court for resentencing. Id. at 44.



              On remand, the trial court held another hearing, at which the defendant

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testified. By this time, the defendant had already completed the confinement term

previously ordered as well as almost two years of probation. The defendant had not,

however, paid the amount of restitution the court ordered him to pay on a monthly basis,

claiming that he did not have sufficient funds to pay the amount ordered. On cross-

examination, the defendant admitted he received more monthly income than he had

reported to the court and that he had chosen to pay for other monthly expenses rather

than paying his court-ordered restitution. The trial court found that while the defendant

may have been a good probationer, he lied to the court about the amount of his monthly

income. The trial court also noted concern that the defendant hid the victim’s death for

many years, did not come forward voluntarily, and had chosen to pay numerous other

bills but not his court-ordered restitution. Based on these findings, the trial court ordered

the defendant to pay one hundred thousand dollars ($100,000) plus six thousand two

hundred dollars ($6200) in funeral expenses to the victim’s family as restitution. The trial

court also ordered the defendant to serve an indeterminate sentence of four to six years

in custody, minus time already served.



                                       PROBATION



              The defendant argues several reasons why the trial court erred in

sentencing him to a term of confinement rather than probation. Primarily, the defendant

contends that there is a presumption for ordering probation and that the State failed to

carry its burden of showing why he should not be sentenced to probation. This argument

is grounded in law inapplicable to this case. As we stated on the first appeal of this case,

neither the law of the Criminal Sentencing Reform Act of 1982 nor the Criminal

Sentencing Reform Act of 1989 applies when sentencing the defendant in this case.

Burris, 950 S.W.2d at 43. Rather, the applicable law in this case is the law that was in



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effect when the defendant committed the crime in 1980. T.C.A. § 40-35-117(c). Under

this law, the defendant carried the burden of showing exceptional circumstances that

would entitle him to probation. See State v. Smith, 662 S.W.2d 588, 590 (Tenn. 1983);

Kilgore v. State, 588 S.W.2d 567, 568 (Tenn. Crim. App. 1979). At the resentencing

hearing, the trial court determined that the defendant failed to carry his burden. We

agree. This argument is without merit.



              The defendant also contends that because the sentence for voluntary

manslaughter now carries a lesser penalty than under the 1980 sentencing statute, the

trial court erred in failing to apply the lesser penalty. It is clear this argument lacks merit,

considering we held in our prior opinion that the defendant must be sentenced under the

law in effect at the time the crime was committed.              Burris, 950 S.W.2d at 43.

Nevertheless, we briefly address the defendant’s argument.



              The defendant relies upon State v. Pearson, 858 S.W.2d 879 (Tenn. 1993),

but Pearson does not support his contentions. In Pearson, the Tennessee Supreme

Court determined that when a trial court imposes a sentence after the effective date of

the 1989 sentencing statute for a crime committed before that date, the trial court must

calculate the appropriate sentence under both the 1982 sentencing statute and the 1989

sentencing statute and impose the lesser sentence of the two. Id. at 880. As stated

above, neither the 1982 nor the 1989 sentencing statutes apply to this case, thus

distinguishing this case from Pearson. Moreover, the holding of Pearson was premised

upon ex post facto concerns, which the instant case fails to implicate. In attempting to

rely upon Pearson, the defendant urges this Court to compare the first sentence imposed

with the sentence imposed on remand, which is admittedly more harsh than the split

sentence originally ordered. This, however, is not the proper analysis, as the laws in



                                               4
effect at the time the crime was committed must be compared with the laws in effect at

the time of sentencing. In this case, the penalty for voluntary manslaughter is now less

than it was at the time the defendant committed the crime, and thus, ex post facto

concerns are not implicated. Therefore, this argument too must fail.



              The remainder of the defendant’s arguments merits little discussion. The

defendant contends that because the resentencing hearing was essentially a hearing to

revoke his probation, the State had the burden of showing why probation should be

revoked. This contention is without merit because this case was clearly remanded for a

resentencing hearing, at which the trial court had to choose between alternative

sentences of confinement or probation; it clearly was not remanded for a hearing to

revoke the defendant’s probation. The defendant also briefly contends that he was

denied equal protection of the laws by receiving a harsher sentence on remand following

a “successful appeal” from a conviction. This argument fails because the defendant

never appealed his conviction, let alone successfully; rather, the only “successful appeal”

in this case was by the State, which appealed the split sentence originally imposed.

Thus, under the authority the defendant cites, the defendant’s equal protection rights

were not violated. See Whaley v. North Carolina, 379 F.2d 221 (4th Cir. 1967).



              Finally, the defendant contends that if there is no presumption for probation,

then the trial court erred in denying probation because it had noted exceptional

circumstances at his first sentencing hearing and the only thing that had changed since

then was that he had successfully completed almost two years of probation. The

defendant’s argument must fail because the record shows that the trial court based its

decision to deny probation partially upon the fact that the defendant had chosen not to

pay court-ordered restitution since the original sentencing hearing, even though he had



                                             5
the means to pay. To this, the defendant contends that contrary to the trial court’s

findings, he did not lie about his income or hide it from the trial court. This contention

lacks merit, however, because the trial court’s findings are supported by a preponderance

of evidence in the record. See State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App.

1981).



                                     RESTITUTION



              The defendant does not challenge the amount of restitution imposed,

nor does he argue that he cannot afford to pay the amount of restitution imposed.

Rather, the defendant argues only that the trial court committed plain error by

imposing restitution in conjunction with a sentence of confinement. We must agree.



              No punishment may be imposed without statutory authority. See State

v. Davis, 940 S.W.2d 558 (Tenn. 1997). As previously discussed, the applicable

sentencing law in the instant case is the law in effect in 1980, when the offense was

committed. T.C.A. § 40-35-117; Burris, 950 S.W.2d at 42. Thus, our inquiry is limited

to whether any statute that was in effect in 1980 authorized the trial court to impose

restitution as part of a sentence of confinement. See Davis, 940 S.W.2d at 561. Our

review of the applicable statutes reveals that the only sentencing statute authorizing

the imposition of restitution was T.C.A. § 40-20-116. Section 40-20-116, which

remains in effect today, allows the imposition of restitution when the jury ascertains

the value of the property lost or stolen in cases of theft or fraud. State v. Bryant, 775

S.W.2d 1 (Tenn. Crim. App. 1988). Because the instant case involves only a count of

voluntary manslaughter, § 40-20-116 does not expressly apply to this case. See

Davis, 940 S.W.2d at 562 n.7.



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              Our Supreme Court has recognized, “This Court cannot affirm a

sentence that is not expressly authorized by the Legislature.” Davis, 940 S.W.2d at

562. “Because there was no other authority under which courts may impose

restitution as part of a custodial sentence, we must conclude . . . that the trial court did

not have the authority to impose restitution in this case.” Id. Accordingly, despite the

fact that the defendant failed to object when the trial court orally imposed restitution at

his resentencing hearing, we must reverse the trial court’s restitution order. Id.



              In sum, the trial court did not err in sentencing the defendant to a term of

confinement. However, because the trial court lacked the statutory authority to order

the defendant to pay restitution as part of a sentence of confinement, we reverse that

portion of the defendant’s sentence. In all other respects, the defendant’s sentence is

affirmed.



                                                  _______________________________
                                                  JOHN H. PEAY, Judge



CONCUR:



______________________________
PAUL G. SUMMERS, Judge



______________________________
CORNELIA A. CLARK, Special Judge




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