          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON
                                                    FILED
                           JANUARY 1998 SESSION
                                                    February 26, 1998

                                                   Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )               Appellate C ourt Clerk
                                    )    NO. 02C01-9704-CC-00135
      Appellee,                     )
                                    )    McNAIRY COUNTY
VS.                                 )
                                    )    HON. JON KERRY
GABRIEL BLACKMAN,                   )    BLACKWOOD, JUDGE
                                    )
      Appellant.                    )    (Sentencing - Restitution)



FOR THE APPELLANT:                       FOR THE APPELLEE:

GARY F. ANTRICAN                         JOHN KNOX WALKUP
District Public Defender                 Attorney General and Reporter

JEANNIE A. KAESS                         JANIS L. TURNER
(At Hearing)                             Assistant Attorney General
Assistant Public Defender                Cordell Hull Building, 2nd Floor
17805 Highway 64                         425 Fifth Avenue North
P.O. Box 700                             Nashville, TN 37243-0493
Somerville, TN 38068-0700
                                         ELIZABETH T. RICE
C. MICHAEL ROBBINS                       District Attorney General
(On Appeal)
3074 East Street                         ED NEAL McDANIEL
Memphis, TN 38128                        Assistant District Attorney General
                                         300 Industrial Park Drive
                                         P.O. Box 473
                                         Selmer, TN 38375-0473




OPINION FILED:



REMANDED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, Gabriel Blackman, pled guilty in the McNairy County Circuit

Court to one (1) count of aggravated burglary and one (1) count of burglary. The

trial court imposed concurrent sentences of three (3) years and two (2) years,

respectively. The trial court suspended the sentences, except for thirty (30) days,

and ordered the remainder of the sentence to be served on probation. As a

condition of probation, the trial court ordered that defendant pay $6,000 in restitution

to the victims. On appeal, defendant challenges only the trial court’s imposition of

restitution. After a review of the record before us, we remand to the trial court for

further proceedings consistent with this opinion.



                                           I



       The defendant, Michael A. Carroll and Clay Kiser Henry were indicted on one

(1) count of aggravated burglary and one (1) count of burglary. The offenses, while

occurring on the same day, involved two separate victims. Each defendant pled

guilty to the charged offenses and received concurrent sentences of three (3) years

and two (2) years, with all but 30 days suspended. The trial court also required

each to pay $6,000 in restitution as a condition of probation. Carroll and Henry

were sentenced approximately four days prior to defendant.

       At defendant’s sentencing hearing, the state’s proof consisted of the

assistant district attorney’s request that the presentence report and the statement

of facts presented at the guilty plea be made part of the record.1 The only testimony

at the hearing was that of the defendant, who agreed to pay restitution for property

damage caused by the aggravated burglary.

       The record contains victim impact statements and a list of items and total

loss sustained by one victim. J.R. Tull, the victim of the burglary, requested total



       1
        No “statement of facts” was attached to the transcript as an exhibit. However,
defendant’s presentence report is part of the record on appeal.

                                           2
restitution in the amount of $4,500. Tull did not submit any documentation for this

loss and asked that $4,000 of the total amount be paid for “mental distress.” Donald

Nelson, the aggravated burglary victim, supplied an itemized list of his loss, which

amounted to $6,083.72.2

       At the conclusion of the hearing, the trial court imposed the sentences and

added, “[r]estitution will be in the amount of $6,000.”         No findings of fact or

allocation to the victims were made by the trial court regarding restitution.



                                            II



       Defendant contends that there is no basis in the record to support the trial

court’s imposition of restitution. He argues that the state failed to present any

evidence of the victims’ pecuniary loss. Therefore, he maintains that the trial court

erroneously ordered the payment of restitution.

       A trial court may order a defendant to pay restitution as a condition of

probation. Tenn. Code Ann. § 40-35-304(a). The amount of restitution is based

upon the victim’s pecuniary loss. Tenn. Code Ann. § 40-35-304(b). The term

“pecuniary loss” is defined as:

       (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 . . .

Tenn. Code Ann. § 40-35-304(e). In determining the amount of restitution, the trial

court should consider the financial resources of the defendant and future ability to

pay. Tenn. Code Ann. § 40-35-304(d); State v. Smith, 898 S.W.2d 742, 747 (Tenn.



Crim. App. 1994). Furthermore, the sum imposed should be reasonable. Smith,

898 S.W.2d at 747.


       2
         It appears that this loss was covered by insurance. The itemized list indicates a
deductible of $250, reducing the loss to $5,833.72. We assume an insurance company paid
the victim $5,833.72 for this loss after reducing the total loss of $6,083.72 by the $250
deductible.

                                            3
                                            III



       This case must be remanded to the trial court for a hearing on the issue of

restitution. The record contains insufficient evidence to support the trial court’s

decision.3 Although the trial court probably did not consider “mental distress” in

setting restitution, mental distress is not a compensable pecuniary loss as

contemplated by the statute. See generally State v. Lewis, 917 S.W.2d 251 (Tenn.

Crim. App. 1995).

       Furthermore, this cause involves two victims and possibly an insurance

company. The trial court should allocate the amount among the interested parties.4

       Moreover, the written judgments of conviction provide for $6,000 restitution

on both counts. This implies that defendant is responsible for $12,000 in restitution,

or $6,000 for each victim.

       On remand, the trial court must resolve several issues, including:

       1.    The actual loss sustained by each victim, as substantiated by
       appropriate documentation or testimony adduced at the hearing;

       2.      The defendant’s ability to pay such restitution;

       3.    The manner and time frame in which defendant will be required
       to make payments; and

       4.   The allocation of restitution among the victims and/or insurance
       company.



                                            IV




       3
        See Tenn. Code Ann. § 40-35-304(b) (“[w]henever the court believes that restitution
may be proper . . . 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.).
       4
        Effective July 1, 1996, Tenn. Code Ann. § 40-35-304 was amended to include the
following:

       If the court sentences a defendant to payment of restitution and believes that
       payment to more than one (1) victim is proper, the court shall determine the
       pecuniary loss of each victim as provided in this section and shall order such
       amount of restitution to each such victim

Tenn. Code Ann. § 40-35-304(g)(3).

                                             4
       For the foregoing reasons, we remand to the trial court for findings on the

issue of restitution as required by Tenn. Code Ann. § 40-35-304. Upon remand, the

trial court shall receive such further testimony as the parties might wish to offer.




                                                  JOE G. RILEY, JUDGE



CONCUR:




JOE B. JONES, PRESIDING JUDGE




PAUL G. SUMMERS, JUDGE




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