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Posted by: Tanja Trezise on Mar 9, 2015

Court: TN Court of Criminal Appeals

Attorneys 1:

Billy K. Tollison, III, Sparta, Tennessee, for the appellant, James Allen Ballew.

Attorneys 2:

Herbert H. Slatery, III, Attorney General and Reporter; Meredith DeVault, Senior Counsel; Randall A. York, District Attorney General; and Philip Hatch, Assistant District Attorney General, for the appellee, the State of Tennessee.

Judge(s): WOODALL

Defendant, James Allen Ballew, was indicted by the White County Grand Jury for one count of theft of property valued at $10,000 or more but less than $60,000, a Class C felony, from White County Lumber Company. On January 29, 2013, Defendant entered a guilty plea to theft of property valued at $500 or more but less than $1,000, a Class E felony. Pursuant to a negotiated plea agreement, Defendant received a two-year sentence to be served on probation and agreed to pay restitution, with the amount to be determined at a subsequent hearing. A restitution hearing was conducted. At the conclusion of the hearing, the trial court took the matter under advisement and requested that the State provide the court with a revised pecuniary loss list, including items recovered by the victim. All that is contained in the transcript from the subsequent hearing is a brief colloquy wherein the trial court said, “we’ve agreed that an order will be submitted on restitution?” and the prosecutor replied, “Yes, your honor.” The appellate record does not contain a separate order for restitution. However, an amended judgment was entered, which states that Defendant is ordered to pay restitution in the amount of $11,000 to White County Lumber. The amended judgment is silent as to the time or manner of payment. Defendant appeals, arguing that the amount of restitution was unreasonable and unsupported by the evidence and that the trial court did not consider Defendant’s ability to pay restitution. The State argues that the record is inadequate to allow for appellate review, and therefore, the trial court’s order of restitution should be presumed correct. We conclude that there is nothing in the record to indicate whether the trial court made a ruling as to the amount of restitution or if an agreement was reached. Defendant’s ability to pay restitution was apparently not considered by the trial court, and the trial court failed to include the repayment terms on the judgment form. It is problematic that there is no indication that Defendant’s counsel was present in open court when the trial judge and the prosecutor had their brief colloquy. Restitution, when appropriate, is just as much an integral part of a sentence as the length of sentence and the manner of service of the sentence. See T.C.A. § 40-35-104(c)(2). Thus, there must be something more in the record setting forth restitution other than what is contained in this record. Moreover, the amended judgment incorrectly states that Defendant was convicted of a Class D felony. Accordingly, we reverse the judgment of the trial court as to restitution and remand this case for a new restitution hearing and entry of an amended judgment that reflects the amount of restitution and the manner of payment, as well as that Defendant’s conviction offense as a Class E felony.