State of Tennessee v. Timothy Leon McKenzie

The defendant, Timothy Leon McKenzie, pled guilty to theft of more than $10,000 and forgery, receiving an agreed term of ten years probation in conjunction with a grant of judicial diversion. Also included in the plea agreement was a condition that the defendant pay the victim of the crimes $157,900 in restitution at a rate of $1315 per month. Thereafter, the defendant was found to be in violation of his probation based upon his failure to report to his probation officer and failure to pay restitution as ordered. The trial court revoked the defendant’s probation and sentenced him to an effective sentence of six years, which the court ordered to be served in confinement. The court further reaffirmed restitution due in the amount of $156,000 and ordered that payment of such restitution be made a condition of the defendant’s parole. On appeal, the defendant asserts that: (1) the trial court erred by imposing a sentence of confinement; (2) the trial court lacked the authority to impose the special condition that ordered the defendant to make restitution when he was paroled; and (3) the court erred in imposing the full amount of restitution absent an inquiry into the defendant’s ability to pay. Following our review of the record, we conclude that the trial could did not err in ordering a sentence of confinement. However, the court did lack the authority to impose payment of restitution as a condition of parole and did fail to appropriately determine the amount of restitution in consideration of the defendant’s ability to pay. As such, remand is necessary for a determination of the proper amount of restitution in this case.