         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   October 3, 2007 Session

                 STATE OF TENNESSEE v. LAURA JUNE MAYS

                     Appeal from the Circuit Court for Hardeman County
                            No. 6698B J. Weber McCraw, Judge



                     No. W2007-00319-CCA-R3-CD - Filed April 8, 2008


As a result of stealing funds from her employer, in 2002, Appellant, Laura June Mays, was convicted
by a Hardeman County jury of theft of property between $10,000 and $60,000. Upon her conviction,
the trial court placed Appellant on probation with a requirement that she and her co-defendant make
restitution in the amount of $42,000. On January 5, 2006, Appellant’s probation was extended.
Appellant failed to make payments pursuant to the January 5, 2006 order. On October 31, 2006, a
probation violation warrant was filed. Following a hearing, the trial court revoked Appellant’s
probation for failure to pay restitution. On appeal, Appellant argues that the trial court erred in
revoking her probation without taking into account her ability to pay. We reverse and remand the
trial court’s decision because the evidence preponderates against the trial court’s findings that
Appellant has willfully refused to pay her restitution or make a bona fide attempt to obtain the means
to pay her restitution.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed and
                                        Remanded.

JERRY L. SMITH , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN E.
GLENN , JJ., joined.

Wayne T. DeWees, Bolivar, Tennessee, for the appellant, Laura June Mays.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilbur, Assistant Attorney General;
Elizabeth Rice, District Attorney General, and Joe Van Dyke, Assistant District Attorney General,
for the appellee, State of Tennessee.



                                             OPINION

      On October 3, 2002, Appellant was convicted of theft of property between $10,000 and
$60,000. The trial court sentenced Appellant to three years. The sentence was suspended in its
entirety, and Appellant was placed on probation. As part of her probation, the trial court ordered
Appellant to make restitution of $42,000 jointly with her co-defendant.

        On January 5, 2006, Appellant’s probation was extended for two years. The trial court
ordered Appellant to pay $500 each month for the first six months and then $1,500 for each month
thereafter. The trial court also ordered Appellant to meet the other terms of her probation.

       On October 31, 2006, a probation violation warrant was filed. The warrant alleged that
Appellant owed $205 in probation arrearage fees and that Appellant had failed to make monthly
payments toward restitution. According to the warrant, Appellant owed $30,120 toward restitution
and had paid $1,440 at that time.

         On January 25, 2007, the trial court held a hearing on the probation revocation. Pakita Hall,
Appellant’s probation officer, testified that she inherited Appellant’s case in 2006. Ms. Hall filed
a probation violation warrant based on a technical violation, which was Appellant’s failure to make
restitution. Appellant had not violated any other provisions of her probation. Ms. Hall stated that
in the original judgment, the trial court did not set a monthly payment amount. Appellant had been
paying about $50 a month until January 5, 2006, when the trial court extended Appellant’s probation
by two years and set monthly payment amounts at $500 a month for the first six months and $1,500
a month for the remaining period of probation. At the time Ms. Hall testified at the probation
revocation hearing, Appellant was more than $5,000 behind on her payments.

        Appellant also testified at the hearing. She stated that at the time of the hearing she was
living in a rental house rent free in exchange for making repairs to the house. She stated that she had
lost her home that she had owned through the ordeal with her conviction. Appellant also stated that
she is married, but they are no longer together. Therefore, she gets no support from her husband.
At the hearing, she also testified that her son lived with her in the rent-free home. He is also
unemployed. At the time of the hearing, Appellant owned a 1992 Ford Tempo that her mother-in-
law had purchased for her. Appellant and her son go out to look for work together because he does
not own a car.

         At the time of the hearing, she was unemployed and had not had a job since August of 2006.
Her income at the time of the hearing was $169 a week in unemployment benefits. Appellant
testified that between 2002 and 2006 she made anywhere from $9,305 to $14,206 a year. Appellant
testified as to her monthly expenses. She stated that in December of 2006, she paid $100 towards
restitution and $100 on her bond to the bondsman. Appellant also paid an electric bill, telephone bill
and purchased groceries. She testified that one month she paid $150 for her electric bill, a $55
telephone bill, $100 for restitution, and $100 on the loan from her bond. Appellant testified that she
could not afford to pay more than $100 toward restitution. To obtain her bond when the violation
warrant was entered in November, Appellant borrowed most of the money and used one week’s
unemployment check.




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        Appellant stated that when she was first put on probation she paid $50 a month in restitution.
The trial court’s order at that time did not specify a monthly amount for her to pay. After she was
revoked and the trial court extended her probation she paid about $100 a month in restitution. She
stated that she is unable to pay $500 a month in restitution. She also testified to a sporadic work
history. She worked at a retail establishment at $5.50 an hour and a hair product factory at $6.80 to
$9.00 an hour. She was fired from the hair product factory due to an altercation with another
employee. She stated that she has been unable to find a new job because of her criminal background.
Appellant testified that the business owner from whom she stole offered Appellant her job back.
Appellant went back to work, but she left because she did not trust herself to work there.

         The trial court ordered that Appellant’s probation be revoked based upon her failure to pay
restitution. The trial court’s order stated the following:


       1.      That the Defendant had the ability to pay greater restitution than she has paid
               through the Clerk’s office to date.
       2.      That the Defendant’s failure to pay a significant amount toward this
               restitution was willful on her part.
       3.      That Defendant has had good employment during the time of her probation
               that would have allowed her to make significant payments toward her
               restitution, but lost that employment due to her misconduct.
       4.      That Defendant has had good employment offers during the time of her
               probation, but turned them down due to her fear of working around money.
               There was no testimony, however, that Defendant sought help with any
               psychological problem that she may have in this area.
       5.      That Defendant has not made a good faith effort to compensate the victim in
               this matter.
       6.      That the initial judgment in this matter clearly makes the Defendant’s
               probation conditional on her payment of restitution.


Appellant filed a timely notice of appeal.

                                             ANALYSIS

         On appeal, Appellant argues that the trial court erred in revoking her probation because the
restitution exceeded her earning ability. A trial court may revoke probation and order the imposition
of the original sentence upon a finding by a preponderance of the evidence that the person has
violated a condition of probation. T.C.A. §§ 40-35-310, -311; State v. Shaffer, 45 S.W.3d 553, 554
(Tenn. 2001). After finding a violation of probation and determining that probation should be
revoked, a trial judge can: (1) order the defendant to serve the sentence in incarceration; (2) cause
execution of the judgment as it was originally entered, or, in other words, begin the probationary
sentence anew; or (3) extend the probationary period for up to two years. See T.C.A. §§


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40-35-308(c) & -311(e); State v. Hunter, 1 S.W.3d 643, 647-48 (Tenn. 1999). The decision to
revoke probation rests within the sound discretion of the trial court. State v. Mitchell, 810 S.W.2d
733, 735 (Tenn. Crim. App. 1991). Revocation of probation or a community corrections sentence
is subject to an abuse of discretion standard of review, rather than a de novo standard. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown if the record is devoid
of substantial evidence to support the conclusion that a violation of probation has occurred. Id. The
evidence at the revocation hearing need only show that the trial court exercised a conscientious and
intelligent judgment in making its decision. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App.
1995).

                Tennessee Code Annotated section 40-35-304 sets out the procedures the trial court
must follow in ordering restitution. The trial court “may direct a defendant to make restitution to
the victim of the offense as a condition of probation.” T.C.A. § 40-35-304(a). “Whenever the court
believes that restitution may be proper or the victim of the offense or the district attorney general
requests, the court shall order the presentence service officer to include in the presentence report
documentation regarding the nature and amount of the victim’s pecuniary loss.” T.C.A. §
40-35-304(b). The amount of restitution that the defendant may be directed to pay is limited to “the
victim’s pecuniary loss.” See T.C.A. § 40-35-304(b). The phrase “pecuniary loss” includes:


        (1) All special damages, but not general damages, as substantiated by evidence in the
        record or as agreed to by the defendant; and
        (2) Reasonable out-of-pocket expenses incurred by the victim resulting from the
        filing of charges or cooperating in the investigation and prosecution of the offense;
        provided, that payment of special prosecutors shall not be considered an
        out-of-pocket expense.


T.C.A. § 40-35-304(e). There is no designated formula or method for the computation of restitution
but the trial court is required to consider “the financial resources and future ability of the defendant
to pay or perform.” Tenn. Code Ann. § 40-35-304(d). “[T]he amount of restitution a defendant is
ordered to pay must be based upon the victim’s pecuniary loss and the financial condition and
obligations of the defendant; and the amount ordered to be paid does not have to equal or mirror the
victim’s precise pecuniary loss.” State v. Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994).

        Before a trial court may revoke a defendant’s probation for failure to make restitution, the
trial court must determine the underlying reasons why the defendant did not pay. State v. Dye, 715
S.W.2d 36, 40 (Tenn. 1986) (citing Bearden v. Georgia, 461 U.S. 660, 668 (1983)). In Dye, our
supreme court held that a trial court must make specific findings when revoking a defendant’s
probation due to failure to pay restitution as a condition of probation. Id. If the trial court finds that
the “defendant ha[s] neglected or willfully refused to pay,” including making bona fide efforts to
obtain the means to pay restitution, then probation may be revoked. Id. at 41 (citing Bearden, 461
U.S. at 674). However, if the defendant does not have the ability to make restitution payments and


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makes no effort to obtain the means to pay, the trial court must find that “alternatives to
imprisonment were inadequate to meet the State’s interests in punishing the offender.” Id. If these
findings are not made by the trial court, the defendant must be allowed to remain on probation. Id.
at 41.

         As quoted above, the trial court made specific findings that Appellant had the ability to pay
restitution and both willfully failed to pay her restitution and failed to make a bona fide effort to
obtain the means to pay her restitution. However, we feel that the evidence preponderates against
the trial court’s conclusion that Appellant neglected or willfully refused to pay her restitution. The
lower court in extending Appellant’s probation set the monthly restitution payments at $500 for six
months and $1,500 per month for the balance of the probation period. This appears to us to be
excessive given Appellant’s income and necessary living expenses. Moreover, Appellant’s co-
defendant was also ordered to pay toward the $42,000 restitution amount. There is nothing in this
record to indicate how much that individual has paid thereby lessening Appellant’s total debt. As
stated above, Appellant was currently unemployed but was actively seeking employment. Even
though Appellant’s income was about $169 a week from unemployment, she was still making an
effort to pay $100 a month toward restitution. Contrary to the trial court’s findings that Appellant
was willfully refusing to pay, Appellant was in actuality paying as much as she reasonably could
based on her income at the time. The trial court also found that Appellant turned down employment
which would enable her to pay more toward restitution. Appellant testified that she left this job
because she did not trust herself working around money. The trial court concluded that this was not
making a bona fide effort to obtain employment to pay restitution. However, we view the fact that
Appellant left this job as evidence that her punishment for theft has been somewhat effective.
Appellant has of her own volition removed herself from temptation even when faced with the
possibility of serving the remainder of her sentence in incarceration. Therefore, under the principles
announced in Dye, we conclude that the trial court should not have ordered the revocation of
Appellant’s probation without making a realistic assessment of Appellant’s ability to pay given her
circumstances on remand. Therefore, the trial court’s revocation of Appellant’s probation is
reversed.

        The record shows that Appellant is unable to pay $500 a month, much less the $1,500 a
month later required. We remand this case for the trial court to make appropriate findings with
regard to Appellant’s ability to pay restitution and set an amount that Appellant reasonably can
afford to pay. All parties may refer to Tennessee Code Annotated section 40-35-304(f) which sets
forth the procedure to be followed when modifying a defendant’s restitution. We also point out as
stated above that the total amount of restitution does not have to equal the victim’s pecuniary loss.
See Smith, 898 S.W.2d at 747.

                                          CONCLUSION

       For the foregoing reasons, we reverse and remand the trial court’s decision.

                                               ___________________________________
                                               JERRY L. SMITH, JUDGE




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