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State v. Swygert5/25/1999
Appellant Robert Patrick Swygert appeals as of right from the order of the Criminal Court of Hamilton County requiring him to pay restitution in the amount of $500.00 a month for twenty months. For the reasons set forth below, we remand the case for further proceedings.
On April 16, 1996, rural mail carrier Caroline Harris was on her route delivering mail to mailboxes. At one point she stopped barely off the edge of the pavement on the right-hand side, placed mail in a mailbox, and took her foot off the brake to continue her route. She noticed a vehicle coming toward her at an excessive rate of speed, straddling the center line. Appellant was driving that vehicle. Impact occurred in Harris's lane of traffic between the left front portions of each vehicle. Her vehicle was totally destroyed.
In September 1996 presentments were issued against appellant by the Hamilton County Grand Jury for four offenses: driving under the influence of an intoxicant, leaving the scene of an accident, driving on a revoked license, and aggravated assault. On July 8,1997, defendant entered pleas of guilty to the offenses of driving under the influence, leaving the scene of an accident, and simple assault, all Class A misdemeanors. Under the terms of the plea agreement, defendant was sentenced to serve eleven months, twenty-nine days on each count. The sentences were run consecutive to one another. With the exception of the minimum forty-eight hour sentence imposed by statute for driving under the influence, the sentences were suspended in their entirety and the defendant was placed on probation for three consecutive terms of eleven months twenty-nine days. A fine of $360.00 was imposed for driving under the influence. The issue of restitution was not agreed between the parties, but was left to be decided by the court at a later hearing.
The restitution hearing was conducted October 28, 1997. After hearing the testimony of the victim and the defendant, the trial court ordered that, effective November 15, 1997, the appellant pay "$500.00 a month for the remaining period of his probation which is twenty months." This represents total restitution of $10,000.00. On appeal the appellant contends that the trial court abused its discretion by ordering payment in this amount.
Tenn. Code Ann. §40-35-304(a) permits the sentencing court to direct a defendant to make restitution to the victim of an offense. There is no designated formula or method for the computation of the amount of restitution. State v. Smith, 898 S.W. 2d 742, 747 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995). The trial court must consider the "pecuniary loss" incurred by the victim. Tenn. Code Ann. §40-35-304(e). The amount determined by the trial court must be reasonable, Tenn. Code Ann. §40-35-303(d), and must take into account the financial resources and future ability of the defendant to pay. Tenn. Code Ann. §40-35-304(d).
At the time of the restitution hearing, defendant was a thirty-two year-old single parent who had custody of his thirteen year-old son. He had been employed for six years with Dixie Group, Inc., making $10.49 per hour. He had voluntarily elected not to seek child support from the mother of his son at the time of their divorce. His net monthly income was $1,362.00. He also occasionally did odd jobs such as mowing yards, making approximately $100.00 per month. His monthly expenses included a $491.50 mortgage payment, $173.95 for utility bills, just over $200.00 for a car payment, $140.00 for car insurance, $200.00 credit card and doctor bills, $100.00 for food, $30.00 for clothing expenses, and other expenses for his son. He also was paying $50.00 per month toward court costs and fi
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