State v. Dye
| Decision Date | 11 August 1986 |
| Parties | STATE of Tennessee, Appellee, v. J.B. DYE, Appellant. 715 S.W.2d 36 |
| Court | Tennessee Supreme Court |
Edward G. Thompson, Memphis, for appellant.
W.J. Michael Cody, Atty. Gen., Ann Lacy Johns, Asst. Atty. Gen., Nashville, for appellee.
We granted defendant's Rule 11 application for permission to appeal to determine whether in light of Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the Court of Criminal Appeals erred in affirming the trial court's revocation of defendant's probation for failure to make restitution.
On 16 February 1981, defendant was indicted on a charge of fraudulent breach of trust. He was alleged to have appropriated to his own use gasoline products placed in his hands for consignment by the E.L. Morgan Company of Jackson, Tennessee. On 26 June 1981, defendant pleaded guilty to the charge. Judgment was entered against him, and he was sentenced to not less than three years nor more than three years in the state penitentiary. The entire sentence was suspended and defendant was placed on three years probation upon the condition that he made restitution to his victim in the amount of $14,295.45 in installments of $4,000 the first year and $6,000 the second year, with the balance to be paid the third year.
It is undisputed that defendant failed to comply with the condition that he make restitution. On 7 March 1984, defendant's probation officer filed a violation report which contained the following notation: On March 17, 1984, an order was issued commanding defendant's arrest and requiring him to show cause why his probation should not be revoked. Defendant was thereafter taken into custody and released on a $2,500 appearance bond.
Defendant appeared in court as required on 11 June 1984, with an attorney who had not been retained in the matter. Defendant requested a two-week continuance, whereupon the following exchange took place:
....
THE COURT: All right. I'll see you in two weeks in Trenton.
Defendant was present and represented by counsel when the cause came to be heard on 25 June 1984. Defendant's lawyer made a lengthy opening statement wherein he reviewed defendant's health prior to the commission of the offense of fraudulent breach of trust and following his guilty plea and promise of restitution, and tendered records in support thereof. He said that defendant had a history of myocardial infarction, angina, breathing difficulties, gout and mental problems; that defendant had been in the Veteran's Administration Hospital in 1977, 1978, 1979, and twice in 1980. He told the court that defendant was in the hospital all except six months of the thirty-three month period between the promised restitution and the show cause order. He said that defendant's wife had medical problems, they had no property or assets and their only income was a Veteran's Administration pension in the sum of $1,200 a month that had been received only since November 1983.
Defendant's lawyer cited Bearden v. Georgia, supra, and invited the trial court to carefully consider a finding that defendant was without fault in failing to meet the terms of restitution promised or at least entitled to have the court consider other alternatives to prison under the principles enunciated in that case. He advised the court that he had recently been hired and asked that the court take the matter under advisement so that he could explore with defendant's children the capacity of the family to pay toward full restitution and come up with a specific plan.
The court responded as follows:
....
The only testimony adduced at the revocation hearing was that of defendant's wife, Dorothy Dye. Mrs. Dye testified that her husband was sixty years old and totally disabled. She indicated that he had been hospitalized for heart and breathing difficulties and mental problems for all but eight or nine months since he pleaded guilty. Mrs. Dye stated that defendant took a number of medications which necessitated constant supervision. She testified that defendant had to be bathed and that he required the assistance of a breathing machine three times a day. Voluminous medical records were submitted to confirm defendant's array of ailments and to document the extended periods of his hospital confinement.
Mrs. Dye further testified that she had written to the assistant attorney general's office in September of 1983, offering to make reduced monthly payments. The letter, which was introduced into evidence, stated in part:
Unfortunately Mr. Dye was hospitalized with a massive heart attack approximately two years, coupled with a nervous breakdown. He has, by and large, remained hospitalized in the Veteran's Administration Hospital in Memphis since. As recently as two months ago he had two lesser heart attacks and his prognosis is not good.
In an effort to resolve this matter, I am offering to pay the sum of $50.00 monthly from Mr. Dye's Social Security benefits. If, by some miracle, Mr. Dye makes a recovery sufficient to enable him to return to work, then he has authorized me to state that he will then pay 1/2 of his earnings until this debt is retired.
Mrs. Dye testified that when she did not receive a reply, she telephoned defendant's probation officer who told her that "it was too late to send anything."
Mrs. Dye said that her husband's income consisted of veterans' benefits for 100% disability. She indicated that she and her husband would seek financial assistance from their five adult children if the court would allow them additional time.
The State declined to cross-examine Mrs. Dye, introduced no evidence, and proffered only the following argument in support of imprisonment:
GENERAL SCHOONOVER: If the Court please, I would just briefly say to the Court that he came into Court with an agreement. That was agreeable with everybody concerned, his attorney and all. The only thing I would say to the Court is this. We have got to have some kind of control over the people we put on probation in lieu of sending them to prison. If we don't we might as well just turn them loose.
During defense counsel's argument, defendant became sick and the court recessed. At the conclusion of the hearing, the court revoked defendant's probation and ordered defendant remanded to the custody of the sheriff as of 2 July 1984, and added that the sentence would be suspended when full restitution and costs were paid.
Proceedings were resumed on 2 July 1984, whereupon counsel advised the court that defendant had been unable to obtain a loan or family help. Defendant moved the court to waive or adjust the restitution previously ordered, and offered to pay $200 a month for a period of five years and ten months. The court overruled the motion, denied bond, and ordered that defendant be taken into custody and transported to the state penitentiary. The court remarked:
THE COURT: I have considered other alternatives. I have put up with this thing for three years. Mr. Dye has made no effort whatsoever to pay one red cent on the restitution as he has agreed to do. I couldn't help but notice last Monday when he had his spell in Court a pack of cigarettes fell out of his pocket. If he's in the shape you say he's in, he doesn't need to be smoking. He could at least have taken that dollar and paid on the restitution. I don't have any patience with that whatsoever. I think I have been as lenient with him as I know how to be and I have given Mr. Dye every opportunity that I know how to give him to make this restitution that he has agreed to do so accordingly, I'm going to revoke your probation....
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State v. Price
...appropriate due process safeguards. Trial courts are also better suited to make required determinations for indigency, see State v. Dye, 715 S.W.2d 36, 40 (Tenn. 1986) (requiring finding of willfulness prior to revocation for failure to pay fines/fees), and hearsay evidence, see e.g. State ......
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Hamrick v. State
...does not pay, he may not agree in advance to being imprisoned for the same reason. In making this determination, we follow State v. Dye, 715 S.W.2d 36 (Tenn.1986), which squarely so holds. See also Duke, 10 Kan.App.2d at 395-96, 699 P.2d at 578-79; State v. Walding, 477 S.W.2d 251 (Tenn.Cr.......
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State v. Lane
...(stating "that in a case of the revocation of probation and suspension, the defendant has the right to appeal"); State v. Dye, 715 S.W.2d 36, 40 (Tenn.1986); Tenn. R.App. P. 3(b) (providing that a "defendant may also appeal as of right from an order denying or revoking Lastly, we cannot agr......
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State v. Lynch, E2001-00197-CCA-R3-CD
...and fines, a court may not revoke the sentence until determining the underlying reasons why the payment has not been made. State v. Dye, 715 S.W.2d 36, 40 (Tenn. 1986); Massey v. State, 929 S.W.2d 399, 402 (Tenn. Crim. App. 1996) (citing Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76......