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
6