         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    August 1, 2006 Session

             CARRI CHANDLER LANE v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                           No. 02-02581    W. Fred Axley, Judge


                     No. W2005-01998-CCA-R3-CD - Filed June 18, 2007


The Appellant, Carri Chandler Lane, appeals the Shelby County Criminal Court’s denial of her
motion to modify court-ordered restitution. The State responds that the denial of a request to modify
restitution is not appealable under Tenn. R. App. P. 3(b), and, even if appealable, the trial court did
not abuse its discretion in denying the motion. While we agree that Rule 3(b) does not provide for
an appeal as of right from a trial court’s denial of a motion to modify restitution, we, nonetheless,
conclude that the Appellant’s issues are entitled to a review as the appeal may be treated as a writ
of certiorari. See T.C.A. § 27-8-101 (2006). After review of the Appellant’s motion on the merits,
we conclude that material changes in circumstances have occurred since the order and, further, that
it would be unjust to require adherence to the restitution order currently in effect. Accordingly, the
trial court’s order denying modification is reversed, and this case is remanded for a hearing to
determine, following consideration of the Appellant’s present financial resources and her future
ability to pay or perform, the proper amount and method of payment of restitution to be made. See
T.C.A. § 40-35-304(d) (2006).

       Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., joined, and
ROBERT W. WEDEMEYER , J., filed a dissenting opinion.

Mark S. McDaniel, Memphis, Tennessee, for the Appellant, Carri Chandler Lane.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Glen Baity, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

       This appeal arises from the denial of the Appellant’s motion to modify restitution, which was
ordered as a condition of probation following her November 2002 guilty plea to Class B felony theft
of property. The Appellant, who was employed for over nine years in various clerical positions at
a Memphis law firm, misappropriated over $500,000 from the firm. Following entry of her guilty
plea, the Appellant received a twelve-year sentence, eighteen months of which was to be served in
confinement at the Shelby County Correctional Center and 10.5 years to be served on probation. As
a condition of probation, the Appellant was ordered to pay restitution in the amount of $556,499.16,
payable in installments of $4,416.66 per month, upon release from confinement. On April 24, 2003,
three days after sentencing, the Appellant petitioned the trial court for a reduction of her monthly
restitution payments, asserting that it was impossible for her to make the monthly scheduled
payments as she had only $500 in her bank account and was earning only $10.50 per hour. On April
28, 2003, the trial court amended its previous order and reduced the Appellant’s payments to
$1,545.83 per month. However, the court extended the Appellant’s probationary period from 10.5
years to thirty years to facilitate recovery of the ordered restitution sum of $556,499.16.

         The Appellant was released from confinement on October 25, 2004. On December 13, 2004,
the Appellant petitioned for a reduction of her monthly restitution payments from $1,545.83 to $500,
citing material changes in circumstances as grounds. In January 2005, the State moved to revoke
the balance of the Appellant’s suspended sentence based upon her failure to make her scheduled
restitution payments. On July 20, 2005, the trial court conducted a hearing on the Appellant’s
motion for modification of restitution. At the hearing, the Appellant testified that she had agreed to
the restitution payment of $1,545.83 because, at the time, she was married and her husband had
agreed that his earnings would support the family, while her earnings would be utilized solely for
repayment of restitution. However, thirty days after reporting to the correctional center, her husband
filed for divorce and requested custody of their newborn son. As a result, the Appellant now has no
spousal support and, additionally, has been ordered to pay health insurance for her son and guardian
ad litem fees, and has incurred considerable attorney’s fees and other court generated expenses. At
the hearing, the Appellant also testified that while she was incarcerated, her husband sold all of her
personal property and that the parties’ home was sold at foreclosure.

         The proof at the hearing undisputedly established that the Appellant, at the time of the
hearing, had expenses of $2,700 per month and a net income of $2,600 per month. Moreover, it is
undisputed that it is only through the benevolence of her employer, friends, and her church that she
is able to subsist, as she currently lives with her employer and his family out of necessity in order
that she may continue making her monthly payments of $1,545.83. In addition to her restitution
payment, the Appellant’s other expenses include health insurance for herself and her son, car
insurance, a car payment,1 and probation fees and court costs. Thus, the Appellant is currently
relying upon the generosity of others for food, lodging, clothing, transportation, and other necessities
of life. Despite this undisputed evidence at the hearing, the State opposed any reduction of
restitution arguing, “ She’s not out in the street. She’s not – hadn’t had to resort to welfare or selling
drugs or anything like that. She’s just struggling trying to make the payments, in which she should
do.” In denying the motion, the trial court agreed with the State concluding that:


         1
         The Appellant testified that her car was not working and was in the shop with $1,093.19 in repairs, which she
was unable to pay.

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        . . . The [Appellant] stated that her take home pay was approximately $2,600 a month
        and her expenses of $2,700 exceeded her monthly income. It should be noted that
        the [Appellant] no longer has many of the expenses for necessities of food, utilities
        and rent because of the generosity of her employer and his family. Her employer
        testified that the [Appellant] is living with him and his family without being
        responsible for any financial contribution to the household. Although the court
        acknowledges that this arrangement is not permanent, never the less it has allowed
        the [Appellant] to become current on her restitution payment. . . . [I]t does appear
        to the court that the [Appellant] has a support network and the continued payment of
        the $1,548 restitution has not rendered her destitute at this juncture. . . .

                                               Analysis

        On appeal, the Appellant asserts that the trial court abused its discretion by failing “to temper
her restitution obligation by considering her financial ability to pay and her duty of support owed to
her minor child and other financial obligations.” The issue of modification of the amount or method
of payment of court ordered restitution is expressly addressed by the provisions of Tennessee Code
Annotated section 40-35-304(f), which provides that:

        A defendant, victim or district attorney general at any time may petition the
        sentencing court to adjust or otherwise waive payment or performance of any ordered
        restitution or any unpaid or unperformed portion thereof. The court shall schedule
        a hearing and give the victim and the defendant notice of the hearing, including the
        date, place and time and inform the victim and defendant that each will have an
        opportunity to be heard. If the court finds that the circumstances upon which it based
        the imposition or amount and method of payment or other restitution ordered no
        longer exist or that it otherwise would be unjust to require payment or other
        restitution as imposed, the court may adjust or waive payment of the unpaid portion
        thereof or other restitution or modify the time or method of making restitution. The
        court may extend the restitution schedule, but not beyond the term of probation
        supervision.

T.C.A. § 40-35-304(f). Although the Sentencing Act provides this specific procedure for subsequent
modification of the terms and conditions of restitution, including the right to an evidentiary hearing,
the State contends that there is no right of appeal from an adverse ruling on the issue by the trial
court.

        Rule 3, Tennessee Rules of Appellate Procedure, provides, in relevant part, that:

        In criminal actions an appeal as of right by a defendant lies from any judgment of
        conviction entered by a trial court from which an appeal lies to the Supreme Court
        or Court of Criminal Appeals: (1) on a plea of not guilty; and (2) on a plea of guilty
        or nolo contendere, if the defendant entered into a plea agreement but explicitly


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        reserved the right to appeal a certified question of law dispositive of the case . . ., or
        if defendant seeks review of the sentence and there was no plea agreement
        concerning the sentence, or if the issues presented for review were not as a matter of
        law . . . . The defendant may also appeal as of right from an order denying or
        revoking probation, and from a final judgment in a criminal contempt, habeas corpus,
        extradition, or post-conviction proceeding.

Tenn. R. App. P. 3(b). The State asserts that “Rule 3(b) of the Tennessee Rules of Appellate
Procedure does not permit direct appeal of a trial court’s disposition of a motion to modify the terms
of probation.” We agree. See State v. Adler, 92 S.W.3d 397, 400-01 (Tenn. 2002) (holding Rule
3(b) appeals are limited to those circumstances specifically enumerated in that rule). Clearly,
modification of a restitution order is not “specifically enumerated” in the rule. Nonetheless, this
court’s jurisdiction extends to review of the final judgments of trial courts in “proceedings instituted
with reference to or arising out of a criminal case.” T.C.A. § 16-5-108(a)(2) (2006). Additionally,
Rule 37 of the Tennessee Rules of Criminal Procedure provides that an appeal as of right “lies from
any order or judgment in a criminal proceeding where the law provides for such appeal.” Tenn. R.
Crim. P. 37(a), (b).

        However, when no appeal as of right exists, and an interlocutory appeal is not proper, See
Tenn. R. App. P. 9, this court may permit the appeal to proceed as a petition for a writ of certiorari.
The writ of certiorari derives from Article 6, section 10 of the Tennessee constitution, but the
practice with respect to how and when it may be obtained is set forth by the Legislature in sections
27-8-101, et seq. These sections are commonly referred to as the “common-law writ of certiorari”
and provide, in pertinent part, as follows:

        The writ of certiorari may be granted whenever authorized by law, and also in all
        cases where an inferior tribunal, board, or officer exercising judicial functions has
        exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of
        the court, there is no other plain, speedy, or adequate remedy. This section does not
        apply to actions governed by the Tennessee Rules of Appellate Procedure.

T.C.A. § 27-8-101. Generally, the writ of certiorari is limited in application and may not ordinarily
be used “to inquire into the correctness of a judgment issued by a court with jurisdiction.” Adler,
92 S.W.3d at 401 (citing State v. Johnson, 569 S.W.2d 808, 815 (Tenn. 1978)); see also State v.
Willoughby, 594 S.W.2d 388, 392 (Tenn. 1980). Normally, the writ properly applies only when the
action of the trial court is without legal authority and where no other “plain, speedy or adequate
remedy” is available. Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005); see also T.C.A. § 27-8-
101. The term “without legal authority” means the trial court “was acting contrary to the law.”
Adler, 92 S.W.3d at 401. However, our supreme court has recognized “ample precedent” which
supports the right of an appellate court to entertain the writ “even though the trial judge has not acted
illegally or in excess of his jurisdiction.” Johnson, 569 S.W.2d at 814. The court explained that
“there are, and must be, exceptions to the general rule.” Id. at 815. One such exception noted by
the court as to when the writ would properly lie is when “the action of the trial judge constituted a


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plain and palpable abuse of discretion.” Id. The court noted that “a critical consideration is the
existence of an effective, available and expeditious appellate remedy” and that “the ultimate test
must be whether, absent the use of the common law writ, either party to a criminal action loses a
right or forfeits an interest than can never be recaptured.” Id. at 815-16.

        After review, we conclude that the common law writ is proper in this case as the court’s
failure to comply with the requirement that “the court shall consider the financial resources and
future ability of the defendant to pay or perform[,]” as provided in Tennessee Code Annotated
section 40-35-304(d), constituted a “plain and palpable abuse of discretion.” Moreover, as
previously observed, no other plain, speedy, or adequate remedy is available to the Appellant in this
case. See T.C.A. § 27-8-101. Accordingly, we treat the Appellant’s appeal as that of a writ of
certiorari. See Adler, 92 S.W.3d at 401; State v. Leath, 977 S.W.2d 132,135 (Tenn. Crim. App.
1998).

         Based upon the proof presented at the hearing, we conclude that it “would be unjust to
require payment . . . as imposed.” See T.C.A. § 40-35-304(f). It is undisputed, based upon the proof
presented at the hearing, that the circumstances upon which the $1,545.83 restitution payment was
based no longer exist. See id. The trial court must consider that “[a defendant] must eat, have a
place to sleep, transportation to and from work, clothing, as well as other related items of expense.”
State v. Smith, 898 S.W.2d 742,747 (Tenn. Crim. App. 1994) (case remanded for determination of
defendant’s reasonable expenses and the amount of restitution he could pay while within the
jurisdiction of the trial court); see also State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001)
(amount of restitution “appear[ed] to be excessive, given the time frame within which payment must
be made and the defendant’s limited income). Clearly, the trial court failed to consider such “other
necessities” in this case, as the court noted that, absent such necessities, the Appellant’s expenses
exceeded her income. The court must considered what the Appellant can “reasonably pay,” as an
“order of restitution which obviously cannot be fulfilled serves no purpose for the appellant or the
victim.” State v. Johnson, 968 S.W.2d 883, 886 (Tenn. Crim. App. 1997) (emphasis added).
Tennessee Code Annotated section 40-35-304(d) expressly provides that “the court shall consider
the financial resources and future ability of the defendant to pay or perform.” (emphasis added).
The trial court is required to set a reasonable amount and method of payment of restitution without
consideration of the generosity of family and friends. See generally State v. Mathes, 114 S.W.3d
915, 919 (Tenn. 2003). “[T]he amount ordered to be paid does not have to equal or mirror the
victim’s precise pecuniary loss.” Smith, 898 S.W.2d at 747. We emphasize that there is no
requirement that an offender must become “destitute” or “out in the street” before modification of
restitution is warranted. It is obvious from the record that, based upon the Appellant’s present
financial resources and her future earnings ability, she is unable to comply with the existing
restitution payment of $1,545.83. Accordingly, remand is required. See Smith, 898 S.W.2d at 747;
see also Mathes, 114 S.W.3d at 919.

         At this juncture, we would also note that a valid question arose at the hearing with regard to
any credits due toward restitution, in addition to the question of the current balance of the ordered
restitution. Testimony indicated that a payment of $100,000 by a corporate surety for the criminal


                                                 -5-
wrongs of the Appellant was paid to the law firm. Additional testimony indicated that a “settlement”
of $75,000 to $100,000 between the law firm and the bank, which honored the forged checks, was
paid; that $44,000 was paid by the victim’s husband to the firm; and that $17,000 was forfeited from
the Appellant’s profit sharing plan at the law firm. It is entirely unclear from the record whether any
of these payments were offset, or should have been offset, against the law firm’s reported loss. Upon
remand, the trial court is instructed to: (1) reconcile these differences and determine the balance of
the ordered restitution owed; and (2) determine the amount and method of payment of restitution to
be made after consideration of the Appellant’s financial resources and her future ability to pay or
perform.

                                           CONCLUSION

         After review, we conclude that the trial court’s ruling constituted a palpable abuse of
discretion by failing to consider the financial resources and future ability of the Appellant to pay or
perform. We conclude there is no other plain, speedy, or adequate remedy and, thus, treat the
Appellant’s appeal as a petition for writ of certiorari. The trial court’s judgment is reversed, and this
case is remanded for a determination of the amount and method of payment of restitution to be made
after consideration of the Appellant’s financial resources and her future ability to pay or perform.
The trial court may consider any change of circumstance which has occurred since the hearing on
July 20, 2005. This case is remanded to the trial court for further proceedings consistent with this
opinion.

                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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