            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE          FILED
                               JULY 1997 SESSION
                                                         October 16, 1997

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,                   )    C.C.A. NO. 03C01-9704-CC-00121
                                      )
      Appellant                       )    BLEDSOE COUNTY
                                      )
v.                                    )    HON. J. CURTIS SMITH,
                                      )    JUDGE
JEFF WELCH,                           )
                                      )    Indictment on assault dismissed
      Appellee                        )




FOR THE APPELLANT                          FOR THE APPELLEE

Charles W. Burson                          Philip A. Condra
Attorney General & Reporter                Public Defender
                                           204 Betsy Park Drive
Michael J. Fahey, II                       P.O. Box 220
Assistant Attorney General                 Jasper, TN 37347
450 James Robertson Parkway
Nashville, TN 37243-0493

David E. Crockett
District Attorney General

Lisa Nidiffer Rice
Assistant District Attorney General
Rte. 19 Box 99
Johnson City, TN 37601




OPINION FILED


REVERSED AND REMANDED


JOHN K. BYERS
SENIOR JUDGE
                                       OPINION


       The trial court found that a prison disciplinary finding which assessed

restitution in the sum of $100.001 against the defendant for damages caused to a

prison guard’s uniform, when he was assaulted by the defendant, barred the

prosecution of the defendant on a charge of assault and battery.

       We reverse the judgment of the trial court and remand this case to the trial

court for further proceedings.

       Three days after the defendant assaulted a guard, a disciplinary hearing was

held. The hearing officer suspended the defendant’s canteen privileges for six

weeks, took away 56 days of sentence reduction credits, and ordered payment of

$100.00 in restitution for the guard’s uniform.

       The trial judge found the order to pay $100.00 restitution amounted to a fine

which was imposed for the purpose of vindicating public justice and barred the

prosecution of the defendant under the prohibition against double jeopardy.

       In State v. Conley, 639 S.W.2d 435 (Tenn. 1982), the Supreme Court held

prior punishment for double jeopardy purposes consists of deprivation of liberty in a

prior proceeding or the imposition of a fine levied for the purpose of vindicating

public justice. Either or both will constitute a bar to a subsequent prosecution.

       The question here is whether the restitution order of $100.00 is such a

punishment. We think not.

       It is clear that disciplinary action by prison authorities does not bar

prosecution for the commission of the crime from which the prison imposed

disciplinary sanctions. Ray v. State, 577 S.W.2d 681 (Tenn. Crim. App. 1978). The

Ray case, however, did not encompass the sanction of forfeiture of money as does

this case.




       1
           Other sanctions were applied but are not raised as issues in this case.

                                            -2-
       We do not believe, on the basis of the facts in this case, that requiring the

payment of $100.00 restitution for damages to the uniform of the guard can be said

to be an imposition of a fine for the purpose of vindicating public justice. Although

the evidence of the value of the uniform vis-a-vis the imposition of $100.00 in

restitution is not shown, we are unable to conclude that the amount is so

disproportionate to the actual damage to be construed as being a fine for the

purpose of punishment for the underlying crime as was found in U.S. v. Halper, 109

S. Ct. 1892, 490 U.S. 435 (1989). We find the imposition of restitution by prison

authorities is not grossly disproportionate to the remedial interest in maintaining

disclipinary control of the prisons. See Hernandez v. Fundora, 58 F.3d 802 (2d Cir.

1995). In fact, it appears an assessment of $100.00 is made against any inmate

whose misconduct causes damage to a guard’s uniform without regard to the actual

damage. We find this is a part of institutional discipline.

       The trial judge’s conclusion that restitution is only to be considered by the trial

judge is, in our view, broader than the sentencing act provides and gives no basis

for dismissing the indictment in this case.

       The judgment of the trial court is reversed, and the case is remanded to the

trial court for further proceedings.




                                           John K. Byers, Senior Judge

CONCUR:




David H. Welles, Judge




Thomas T. W oodall, Judge




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