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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY 1998 SESSION February 26, 1998 Cecil Crowson, Jr. STATE OF TENNESSEE, Appellee, VS. GABRIEL BLACKMAN, Appellant. ) ) ) ) ) ) ) ) )
Appellate C ourt Clerk

FILED

NO. 02C01-9704-CC-00135 McNAIRY COUNTY HON. JON KERRY BLACKWOOD, JUDGE (Sentencing - Restitution)

FOR THE APPELLANT: GARY F. ANTRICAN District Public Defender JEANNIE A. KAESS (At Hearing) Assistant Public Defender 17805 Highway 64 P.O. Box 700 Somerville, TN 38068-0700 C. MICHAEL ROBBINS (On Appeal) 3074 East Street Memphis, TN 38128

FOR THE APPELLEE: JOHN KNOX WALKUP Attorney General and Reporter JANIS L. TURNER Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 ELIZABETH T. RICE District Attorney General ED NEAL McDANIEL 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

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

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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.

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