671 S.W.3d 537
Tenn.2023Background
- In Nov. 2018 Gevedon drove through a cemetery, damaging gravestones; he pleaded guilty to DUI and leaving the scene and received concurrent sentences of 11 months, 29 days suspended after 48 hours, with restitution to be set later.
- After probation violations and a combined restitution/probation‑revocation hearing, the State proved $30,490.76 in property damage; the trial court revoked probation, ordered restitution in that amount, but did not set payment terms and indicated the restitution would likely be converted to a civil judgment.
- Gevedon testified he earned about $350/week with roughly $800/month expenses; after revocation he was incarcerated and could not earn income to pay restitution.
- The Court of Criminal Appeals dismissed Gevedon’s appeal for lack of jurisdiction, concluding the restitution order was nonfinal because it lacked payment terms; permission to appeal to the Tennessee Supreme Court was granted.
- The Supreme Court held the restitution order was final (payment time defaults to sentence expiration under Tenn. Code Ann. § 40‑35‑304(g)), but vacated the restitution order because the trial court abused its discretion by failing to consider Gevedon’s financial resources and ability to pay and by imposing an unreasonable amount given his incarceration; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gevedon) | Held |
|---|---|---|---|
| Finality: Is a restitution order that sets only amount but no payment terms a final, appealable order? | (CCA view) Nonfinal because no payment schedule; appeal must await payment‑terms determination | Order is final: amount fixed and § 40‑35‑304(g) makes payment time the sentence expiration | Order is final; amount + implicit time (sentence end) leave nothing for further judgment; CCA dismissal reversed; Northern/Comer to extent inconsistent overruled |
| Must a trial court include express payment terms/schedule in a restitution order? | Trial courts have discretion to set terms but may need to specify schedule | No—statute gives discretion; when restitution is part of sentence, § 40‑35‑304(g) supplies default time | Trial court not required to include payment terms; payment time defaults to sentence expiration when restitution is part of the sentence |
| Did the trial court have to consider defendant’s financial resources and ability to pay when setting restitution amount? | State conceded trial court failed to do so | Argued trial court abused discretion by not considering ability to pay | Trial court abused its discretion by failing to consider Gevedon’s financial resources and future ability to pay as required by § 40‑35‑304(d); restitution order vacated |
| Was the restitution amount reasonable and payable while defendant remained under court’s jurisdiction (or improperly set relying on later civil‑judgment conversion)? | State acknowledged errors re conversion procedure and consideration of ability to pay | Argued $30,490.76 is unreasonable and cannot be paid while incarcerated; cannot rely on later civil conversion | Restitution was unreasonably set given incarceration/no earning ability; trial court cannot set an order that cannot reasonably be paid while defendant remains under jurisdiction; remanded for recalculation or dismissal if sentence expired |
Key Cases Cited
- Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446 (Tenn. 1995) (finality: judgment that disposes of whole merits is final)
- Saunders v. Metro. Gov’t of Nashville & Davidson Cnty., 383 S.W.2d 28 (Tenn. 1964) (definition of final order)
- Comer v. State, 278 S.W.3d 758 (Tenn. Crim. App. 2008) (restitution order tied to plea where payment schedule deferred)
- Johnson v. State, 968 S.W.2d 883 (Tenn. Crim. App. 1997) (trial court must consider defendant’s means and future ability to pay when determining restitution)
- Caudle v. State, 388 S.W.3d 273 (Tenn. 2012) (abuse‑of‑discretion standard for alternative sentence review)
- Bise v. State, 380 S.W.3d 682 (Tenn. 2012) (scope of appellate review for sentencing issues)
- Phelps v. State, 329 S.W.3d 436 (Tenn. 2010) (definition of judicial abuse of discretion)