Earlier this year, the Tennessee Court of Criminal Appeals reversed a criminal court order that the defendant pay $36,473 in restitution at a rate of $50 per month. When ordering restitution, the trial court must consider the victim’s losses and the financial resources and future ability of the defendant to pay. T.C.A. § 40-35-304; State v. Bottoms, 87 S.W.3d 95, 108 (Tenn. Crim. App. 2001). The court must consider these factors because an order of restitution that cannot be fulfilled does not help the defendant or the victim. In addition, the court cannot establish a payment plan that extends beyond the expiration of the sentence (although any unpaid restitution at the expiration of the payment period may be converted to a civil judgment).
Here, the defendant was fifty-two years old with a seventh grade education and an employment history consisting only of manual labor. Regardless of the length of his probationary term, he could not be reasonably expected to pay $36,473 in restitution. Further, the defendant’s sentence was only for two years. While the statute allows unpaid restitution to be converted to a civil judgment, this “does not release a trial court from the obligation to set an amount of restitution and payment terms that the defendant can reasonably be expected to satisfy.” Accordingly, the court of criminal appeals reversed the judgment of the trial court as to restitution.
State v. Ballew, No. M2016-00051-CCA-R3-CD (Mar. 24, 2017)