           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                             FILED
                           AT KNOXVILLE                     June 24, 1999

                                                          Cecil Crowson, Jr.
                        MARCH 1999 SESSION               Appellate C ourt
                                                             Clerk



JAMES E. LAMPKIN,               *    C.C.A. 03C01-9804-CR-00160

      Appellant,                *    KNOX COUNTY

vs.                             *    Hon. Ray L. Jenkins, Judge

STATE OF TENNESSEE,             *    (Motion to be Discharged from
                                     Payment of Moot Fines and
      Appellee.                 *    Costs)



For Appellant:                       For Appellee:

James E. Lampkin                     John Knox Walkup
STSRCF, Unit 6                       Attorney General and Reporter
Route 4, Box 600                     425 Fifth Avenue North
Pikeville, TN 37367                  Nashville, TN 37243-0493

                                     Ellen H. Pollack
                                     Assistant Attorney General
                                     Criminal Justice Division
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493




OPINION FILED:



REMANDED



NORMA MCGEE OGLE, JUDGE
                                       OPINION

               In this appeal, James E. Lampkin challenges the order of the Criminal

Court of Knox County, entered on March 24, 1998. The order was entered in

response to the appellant’s motion to ascertain the status of his previously filed

“Motion to be Discharged from Payment of Moot Fines and Costs.” The trial court

found that it had already ruled upon the appellant’s motion and had dismissed the

motion. The appellant now raises the following issues for our consideration:

        1.     Whether the trial court erroneously declined to consider
               the appellant’s “Motion to be Discharged from Payment
               of Moot Fines and Costs.”
        2.     Whether the appellant should be discharged from fines
               and costs imposed pursuant to his 1986 convictions for
               receiving stolen property, leaving the scene of an
               accident, driving on a revoked license, and driving under
               the influence of an intoxicant, third offense.
        3.     Whether Tenn. Code. Ann. § 67-1-1501 (1986) bars
               collection of the aforementioned fines and costs.



               Following a thorough review of the record, we remand this case to the

trial court.



                               I. Factual Background

               The record reflects that, on September 12, 1986, the petitioner pled

guilty to receiving stolen property (Case No. 27996), leaving the scene of an

accident (Case No. 27997), driving on a revoked license (Case No. 27998), and

driving under the influence of an intoxicant (Case No. 27999). The record only

includes the minutes of the court documenting the appellant’s judgment of

conviction in case No. 27999. For the offense of driving under the influence, the trial

court imposed a sentence of eleven (11) months and twenty-nine (29) days in the

Knox County Penal Farm and a fine of one thousand dollars ($1,000.00).

Additionally, the trial court provided that the appellant would be responsible for the

costs of the prosecution.

                                           2
              On February 4, 1997, the appellant filed a motion asking that the trial

court declare him indigent and waive the fines and court costs imposed pursuant to

his convictions for leaving the scene of an accident (Case No. 27997) and driving on

a revoked license (Case No. 27998). Subsequently, the appellant amended his

motion to include fines and costs resulting from his conviction for driving under the

influence (Case No. 27999). On April 30, 1997, the trial court dismissed the

appellant’s motion on the basis of the appellant’s continuing incarceration.



              On August 25, 1997, the appellant filed a “Motion to be Discharged

from Payment of Moot Fines and Costs” in case No. 27999. In this motion, the

appellant alleged that, pursuant to his conviction for driving under the influence, the

trial court had, at some point in time, ordered the appellant to pay thirty-three dollars

and fifty cents ($33.50) for each day of his sentence of eleven (11) months and

twenty-nine (29) days “or be confined or otherwise imprisoned until the fines and

costs were satisfied.” The appellant further alleged that he was, in fact, imprisoned

and completed service of his sentence in satisfaction of the fines and costs.

Moreover, notwithstanding the style of his motion, the appellant alleged that his

service of concurrent sentences of imprisonment in cases Nos. 27996, 27997, and

27998 satisfied all fines and costs imposed in those cases.



              On March 12, 1998, the appellant filed a motion to ascertain the status

of his “Motion to be Discharged from Payment of Moot Fines and Costs.” As

mentioned earlier, the trial court entered an order on March 24, 1998, finding that

the motion referred to in the appellant’s “Motion to Ascertain Status of Case” had

already been ruled upon by the trial court and dismissed on April 30, 1997.



                                      II. Analysis


                                            3
               Initially, Tenn. Code. Ann. § 40-24-102 and -104 (1982) authorize a

trial court to release a criminal defendant from fines or to reduce fines upon a

finding of indigency or other good cause.1 Additionally, Tenn. Code. Ann. § 40-25-

129(2) (1982) authorizes a trial court to discharge a criminal defendant’s court costs

upon a finding of indigency. In this case, the State apparently adopts the position

that the appellant’s August 1997 motion was a motion to discharge or reduce the

appellant’s fines and costs due to his indigency. Accordingly, the State argues that

the trial court correctly dismissed the appellant’s motion. The State cites State v.

Brewer, No. 42, 1988 WL 35452, at *4 (Tenn. Crim. App. at Knoxville, April 14,

1988), for the proposition that a motion to discharge or reduce fines and costs due

to indigency is not ripe for consideration while a defendant is incarcerated, even if

the defendant is serving an unrelated sentence.



               While we agree with this proposition, we believe that the State has

incorrectly characterized the appellant’s August 1997 motion. As noted earlier, the

appellant argued in his motion that he should be discharged from fines and costs

associated with his various convictions, not because he is indigent, but because he

has already served a term of imprisonment in default of his fines. See Tenn. Code.

Ann. § 40-24-104; Tenn. Code. Ann. § 40-24-105(a) (1982). Nevertheless, we are

precluded from considering this issue, because the record is incomplete. State v.

Gibson, 973 S.W.2d 231, 244 (Tenn. Crim. App. 1997), perm. to appeal denied,

(Tenn. 1998). Nothing in the record before this court either confirms or conclusively

contradicts the appellant’s assertion.2


       1
        Tenn. Code. Ann. § 55-10-403(b)(2)(1986) specifically authorizes trial courts, upon
a finding of indigency, to relieve a defendant of his obligation to pay a fine imposed pursuant
to a conviction for driving under the influence of an intoxicant.
       2
         However, the appellant’s filing of motions in February and April of 1997 asking the
trial court to waive his fines and costs due to his indigency belies the assertion in his August
1997 motion.

                                                4
               We note in passing that the appellant claims that he was ordered by

the trial court to pay thirty-three dollars and fifty cents ($33.50) in fines and costs for

each day of his eleven month and twenty-nine day sentence or be incarcerated in

satisfaction of his fines and costs. 3 Interestingly, the court of appeals observed in

Knox County v. City of Knoxville, No. 759, 1988 WL 116456, at *1 (Tenn. App. at

Knoxville, November 2, 1988), that the Knox County Board of Commissioners had

passed a resolution on August 20, 1984, charging each misdemeanant incarcerated

in the Knox County Jail thirty-three dollars and fifty cents ($33.50) per day in

confinement. To the extent that the appellant may have confused jailer’s fees with

fines and costs, we further note that the court of appeals held that DUI offenders in

the Knox County Jail must pay both the jailer’s fee and any fine for drunk driving. Id.

at **2-3.



               As to the appellant’s argument that Tenn. Code. Ann. § 67-1-1501

bars the collection of fines and costs in his cases, we note that the appellant raises

this issue for the first time on appeal. State v. Johnson, 970 S.W.2d 500, 508

(Tenn. Crim. App. 1996). Second, even if applicable in this case, Tenn. Code. Ann.

§ 67-1-1501 applies only to the collection of litigation taxes and not to the collection

of fines and costs in criminal cases. See, e.g. Tenn. Code. Ann. § 67-4-601 to -606

(1986). The record before this court does not even reflect whether the appellant

currently owes litigation taxes in the cases at issue.



               In any event, regardless of the merits of the appellant’s motion or lack

thereof, it is apparent from the trial court’s March 1998 order that it did not, in fact,


       3
        Of course, if a defendant is otherwise an appropriate candidate for alternative
sentencing, a trial court may not imprison a defendant solely due to the defendant’s indigency
and consequent inability to pay a fine. State v. Dye, 715 S.W.2d 36, 41 (Tenn. Crim. App.
1986); State v. Millsaps, 920 S.W.2d 267, 272 (Tenn. Crim. App. 1995); State v. Coleman,
675 S.W.2d 206, 207-208 (Tenn. Crim. App. 1984).

                                              5
rule upon the appellant’s August 1997 motion. Apparently, when the appellant filed

his “Motion to Ascertain Status of Case,” the trial court mistakenly believed that the

appellant was attempting to ascertain the status of his motions filed in February and

April of 1997. Accordingly, there is no final judgment before this court subject to

review. We remand this case to the trial court in order to conduct proceedings

consistent with this opinion, make any necessary findings, and enter an order

addressing the appellant’s August 1997 motion.




                                                 Norma McGee Ogle, Judge


CONCUR:




Gary R. Wade, Presiding, Judge




Cornelia A. Clark, Special Judge




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