IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1999 SESSION
FILED
June 7, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9710-CR-00395
Appellee, )
) Shelby County
V. )
) Honorable L. T. Lafferty, Presiding Judge
)
JOY SCHMIDT, ) (Theft of Property Over Sixty Thousand
) Dollars)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
WAYNE EMMONS JOHN KNOX WALKUP
2502 Mt. Moriah Road, Suite A-100 Attorney General & Reporter
Memphis, TN 38115
PETER COUGHLAN
Assistant Attorney General
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
J. ROBERT CARTER
Assistant District Attorney General
Criminal Justice Center-Third Floor
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED: ___________________
AFFIRMED AS MODIFIED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Joy Schmidt, appeals from the Shelby County Criminal
Court’s modifying her probation. She had pleaded guilty to theft of property over
sixty thousand dollars, a Class B felony, and received a sentence of eight years
as a standard Range I offender. The trial court then suspended her sentence to
ninety days, to be served on weekends, and imposed ten years of probation,
restitution of approximately $82,000, and a fine of $500. Approximately two
months later, the trial court modified the probation by ordering the defendant to
immediate incarceration for ninety consecutive days. The defendant appeals,
asserting that the trial court improperly modified her probation because she was
unable to make the monthly restitution payments of $750. The defendant also
asserts that the restitution should be reduced by the amount paid to the victim
under a dishonesty/theft insurance policy. We MODIFY the judgment, limiting
the maximum amount of restitution to $32,000, and AFFIRM.
BACKGROUND
In less than a year, the defendant forged at least sixty-two checks,
totaling approximately $82,000, on United Agriculture, her employer at that time.
The trial court accepted her plea and sentenced her to eight years with the
Tennessee Department of Correction. The trial court suspended all but ninety
days, to be served on weekends. That court placed the defendant on ten years
probation and, as a specific condition of her probation, ordered her to make
restitution payments of $750 per month to United Agriculture.
At the hearing for her Petition to Suspend Sentence, the defendant
testified that she had no assets remaining from the stolen funds, because she
spent the overwhelming majority of the money on clothes; tanning sessions;
cosmetic services; private school for her daughter; extravagant meals; furniture;
lessons for dancing, beauty contests, and related training for her daughter; and
-2-
similar expenditures. The defendant further testified that she liquidated all her
assets during several months of unemployment, after United Agriculture
discovered the thefts. With no foreseeable help from her family, her present and
future pay were her sole source of funds for the restitution payments. At the time
of the hearing, she worked approximately forty hours per week and earned
$10.25 per hour.
Dr. Roger Hanes, the president of United Agriculture, testified that their
insurer, State Auto Insurance, had paid $50,000 of United’s loss under a
dishonesty/theft policy.
The trial court presided over a revocation hearing approximately two
months later. The defendant had made only one payment of two hundred
dollars, paid the week of the revocation hearing. The trial court modified her
probation, ordering her to serve ninety consecutive days, because of her
dishonesty with that court and her failure to extend a good faith effort to make
her restitution payments to the victim. The defendant also asserts that the
restitution should be lowered in accordance with a recent decision from the
Tennessee Supreme Court.
STANDARD OF REVIEW
On an appeal from a trial court’s modification of probation, this Court
reviews the record for an abuse of discretion. See State v. Harkins, 811 S.W.2d
79, 82 (Tenn. 1991); see also State v. Cheakeater Johnson, No. 01C01-9308-
CC-00285 (Tenn. Crim. App. filed July 21, 1994) (“[T]he standard of review is the
same whether the trial judge actually revoked probation or simply modified the
conditions.”). This Court will not disturb the trial court’s judgment unless “the
record contains no substantial evidence to support the conclusion of the trial
judge that a violation of the conditions probation has occurred.” Harkins, 811
S.W.2d at 82.
-3-
ANALYSIS
We first address the amount of the monthly restitution payment. In
Tennessee, a court exercising criminal jurisdiction has no “inherent power or
authority to order payment of restitution except as is derived from legislative
enactment.” State v. Alford, 970 S.W.2d 944, 945 (Tenn. 1998). “A sentencing
court may direct a defendant to make restitution to the victim of the offense as a
condition of probation,” if that court “consider[s] the financial resources and
future ability of the defendant to pay or perform” and does not extend the
payment schedule beyond the statutory maximum term of applicable probation
supervision. Tenn. Code Ann. § 40-35-304(a), (c), (d) (emphasis added).
However, the statute’s “to the victim” language does not comprise
“insurers which pay claims under an insurance contract.” Alford, 970 S.W.2d at
946. The Tennessee Supreme Court has ruled that the General Assembly did
not authorize restitution payments to insurers, even through subrogation, under
these circumstances. Id. at 947. The state concedes that State Auto’s payment
to United Agriculture reduces the restitution owed United by $50,000. We
therefore modify the judgment below, such that the restitution shall not exceed
$32,000.1
We next address the trial court’s modifying probation such that the
defendant serves ninety consecutive days. This Court will not disturb the trial
court’s finding that the defendant had been untruthful with that court on several
matters. Further, the trial court found that she had not extended the good faith
effort at restitution that the court specifically established as a condition of her
probation. Although she had been on probation over two months and owed at
least $1500 by the day of the revocation hearing, she had made only one
payment of $200 the week of that hearing. The trial court modified the
1
On proper motion, the trial court may consider lowering the monthly payments by an
amo unt prop ortional to this re duced total restitution.
-4-
defendant’s probation for these reasons--not merely because the defendant had
not paid the full scheduled amount of restitution. Lack of truthfulness and good
faith with a trial court is a valid reason for that court’s modifying probation. See
State v. Bunch, 646 S.W.2d 158 (Tenn. 1993). We do not find an abuse of
discretion by the trial court in its finding sufficient evidence for this modification.
This issue is without merit.
CONCLUSION
The judgment below is AFFIRMED AS MODIFIED.
_____________________________
JOHN EVERETT WILLIAMS, Judge
CONCUR:
_____________________________
DAVID G. HAYES, Judge
_____________________________
JOE G. RILEY, Judge
-5-