        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  June 2, 2009 Session

                STATE OF TENNESSEE v. LAURA JUNE MAYS

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


               No. W2008-02144-CCA-R3-CD - Filed January 25, 2010


The Defendant-Appellant, Laura Mays, was convicted by a Hardeman County jury of theft
of property between $10,000 and $60,000, a Class C felony. She received a three-year
sentence, but was subsequently placed on probation. Her probation was revoked by the trial
court because of her failure to make restitution payments. In her first appeal, this court
reversed the trial court’s revocation of her probation and directed the trial court to set a
reasonable amount for restitution payments. On remand, the trial court again revoked Mays’
probation. Mays now appeals the revocation of her probation, claiming the trial court did not
follow this court’s mandate from her first appeal. Upon review, we again reverse the
judgment of the trial court, and remand this matter for a determination of Mays’ ability to
pay restitution.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Wayne T. DeWees, Bolivar, Tennessee, for the Defendant-Appellant, Laura June Mays.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Elizabeth Rice, District Attorney General; and Joe Van Dyke, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       Background. On direct appeal, this court summarized the facts and procedural
history of this case as follows:

             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

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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.

        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

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              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.

State v. Laura June Mays, No. W2007-00319-CCA-R3-CD, 2008 WL 1700227, at **1-2
(Tenn. Crim. App., at Jackson, Oct. 3, 2007).

       On direct appeal, this court reversed the trial court’s decision and remanded the case,
stating:

               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 [State v. Dye, 715 S.W.2d 36

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        (Tenn. 1986)], 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 [State v.
        Smith, 898 S.W.2d 742, 747 (Tenn. Crim. App. 1994)].

Mays, 2008 WL 1700227, at **3-4.

         On remand, the trial court held a second revocation hearing. Mays testified that since
the first revocation hearing, she had not made any restitution payments. She denied testifying
at the first revocation hearing that she quit her job at the finance company because she did not
trust herself to work there. Instead, Mays said she was fired from that position. After her
termination, Mays said she worked for Avon. She left that position to work for Bolivar Ford.
Mays testified that she was fired from Bolivar Ford because she missed a day of work and
failed to speak with someone at the dealership about her absence.

       Mays testified that she was currently unemployed. She claims she applied to numerous
jobs and went to the unemployment office on a regular basis. She struggled to find work
because of her criminal history. Mays said she stopped making restitution payments based
on this court’s decision on direct appeal. She was waiting for the trial court to reset the
payment amount. Mays testified that she spends $780 a year on cigarettes, and $360 annually
on dog food. Mays also testified that she pays for internet service at her home.

       Following Mays’ testimony at the second revocation hearing, the trial court again
revoked her probation. It stated that its directive on remand was to “make a realistic
assessment of . . . Mrs. Mays’ ability to pay.” The trial court found that Mays was not a
credible witness and continued “to manipulate the system.” It focused on Mays’ contradictory
testimony about her departure from the finance company. The trial court stated:

       Rather than considering that she left the job, in fact, her testimony is greatly
       different today, she didn’t leave the job, she was terminated. So while giving
       her . . . a pat on the back for removing herself from temptation, she didn’t. She
       was terminated.

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The trial court also considered the money Mays spent on cigarettes, dog food, and the internet.
It concluded that Mays had not “made a good faith effort to pay restitution; not the full
restitution, but a reasonable rate of restitution.” Consequently, it again revoked Mays’
probation.

                                        ANALYSIS

       I. Probation Revocation. Mays claims the trial court did not follow the mandate
issued on direct appeal. Mays argues that the mandate only authorized the trial court to set
an appropriate rate of monthly restitution. The State contends the trial court was permitted
to revoke Mays’ probation based on her testimony at the second revocation hearing about her
termination from the finance company. Following our review, we agree with Mays.

        On direct appeal, this court determined that “the evidence preponderates against the
trial court’s conclusion that Appellant neglected or willfully refused to pay her restitution.”
Mays, 2008 WL 1700227, at *3. On remand, we previously directed 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.” Id. at *4. The trial court did not follow the
limited remand in this case. We recognize that Mays presented conflicting testimony
regarding her departure from the finance company; however, the sole purpose of the limited
remand was for the trial court to determine Mays’ ability to pay restitution and to set the
amount for restitution payments. Accordingly, we reverse the judgment of the trial court and
remand this case to conduct a hearing to determine Mays’ ability to pay her restitution.
Consistent with our previous remand, we further instruct the trial court to set a reasonable
amount of restitution payments based on Mays’ ability to pay.


                                      CONCLUSION

       Upon review of the record, we reverse the judgment of the trial court and remand this
case for proceedings consistent with this opinion.


                                                    ___________________________
                                                    CAMILLE R. MCMULLEN, Judge




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