2010 Tennessee Code
Title 40 - Criminal Procedure
Chapter 35 - Criminal Sentencing Reform Act of 1989
Part 3 - Sentences
40-35-304 - Restitution as condition for probation Petition to modify Civil judgment for non-payment Procedure.

40-35-304. Restitution as condition for probation Petition to modify Civil judgment for non-payment Procedure.

(a)  A sentencing court may direct a defendant to make restitution to the victim of the offense as a condition of probation.

(b)  Whenever the court believes that restitution may be proper or the victim of the offense or the district attorney general requests, the court shall order the presentence service officer to include in the presentence report documentation regarding the nature and amount of the victim's pecuniary loss.

(c)  The court shall specify at the time of the sentencing hearing the amount and time of payment or other restitution to the victim and may permit payment or performance in installments. The court may not establish a payment or performance schedule extending beyond the statutory maximum term of probation supervision that could have been imposed for the offense.

(d)  In determining the amount and method of payment or other restitution, the court shall consider the financial resources and future ability of the defendant to pay or perform.

(e)  For the purposes of this section, “pecuniary loss” means:

     (1)  All special damages, but not general damages, as substantiated by evidence in the record or as agreed to by the defendant; and

     (2)  Reasonable out-of-pocket expenses incurred by the victim resulting from the filing of charges or cooperating in the investigation and prosecution of the offense; provided, that payment of special prosecutors shall not be considered an out-of-pocket expense.

(f)  A defendant, victim or district attorney general at any time may petition the sentencing court to adjust or otherwise waive payment or performance of any ordered restitution or any unpaid or unperformed portion thereof. The court shall schedule a hearing and give the victim and the defendant notice of the hearing, including the date, place and time and inform the victim and defendant that each will have an opportunity to be heard. If the court finds that the circumstances upon which it based the imposition or amount and method of payment or other restitution ordered no longer exist or that it otherwise would be unjust to require payment or other restitution as imposed, the court may adjust or waive payment of the unpaid portion thereof or other restitution or modify the time or method of making restitution. The court may extend the restitution schedule, but not beyond the term of probation supervision.

(g)  The procedure for a defendant sentenced to pay restitution pursuant to § 40-35-104(c)(2), or otherwise shall be the same as is provided in this section with the following exceptions:

     (1)  If there is no sentencing hearing or presentence report because the defendant's sentence is agreed upon and the payment of restitution is a part of the sentence, the plea agreement shall include the amount of restitution and the other performance requirements set out in subsection (c);

     (2)  A defendant sentenced in whole or in part to the payment of restitution pursuant to § 40-35-104(c)(2), or otherwise, shall be responsible for the payment of the restitution until the expiration of the sentence imposed by the court, and any payment or performance schedule established by the court shall not extend beyond the expiration date;

     (3)  If the court sentences a defendant to payment of restitution and believes that payment to more than one (1) victim is proper, the court shall determine the pecuniary loss of each victim as provided in this section and shall order the amount of restitution to each victim;

     (4)  If, as a result of the defendant's criminal conduct, the victim or victims of the offense are dead at the time of sentencing, the court may sentence the defendant to pay restitution to the victim's or victims' next-of-kin; and

     (5)  Nothing in § 39-11-118, § 40-35-104(c)(2) or this subsection (g) shall be construed to prohibit or delay a victim from applying for and receiving any compensation to which the victim is entitled under the Criminal Injuries Compensation Act, compiled in title 29, chapter 13. If the court orders the defendant to pay restitution pursuant to § 39-11-118, § 40-35-104(c)(2) or this subsection (g), the state shall have a subrogation interest in the restitution payments for the full amount paid the victim under the Criminal Injuries Compensation Act.

(h)  (1)  Notwithstanding the provisions of any law to the contrary, upon expiration of the time of payment or the payment schedule imposed pursuant to subsection (c) or (g), if any portion of restitution remains unpaid, then the victim or the victim's beneficiary may convert the unpaid balance into a civil judgment in accordance with the procedure set forth within this subsection (h).

     (2)  Within the twelve-month period following expiration of the time of payment or the payment schedule imposed pursuant to subsection (c) or (g), the victim or the victim's beneficiary may file a certified copy of the restitution order with an appropriate civil court having jurisdiction over the total amount of restitution ordered.

     (3)  At the same time the victim or victim's beneficiary files a certified copy of the restitution order with the civil court, the victim or victim's beneficiary shall have the defendant personally served in accordance with the Tennessee rules of civil procedure. The service shall give notice to the defendant of the victim's or victim's beneficiary's intent to convert the restitution order to a civil judgment, include a copy of the restitution order and a statement as to the amount of unpaid restitution the victim or victim's beneficiary alleges the defendant still owes.

     (4)  Upon being served, the defendant shall be permitted to file an answer in accordance with the Tennessee rules of civil procedure.

     (5)  Upon service of the defendant and receipt of the defendant's answer, if any, the civil court shall conduct a hearing in order to take proof as to the amount of ordered restitution actually paid. Both the victim or victim's beneficiary and the defendant shall be permitted to offer proof at this hearing. If the court finds by a preponderance of the evidence presented that the amount of restitution actually paid is less than the total amount of restitution ordered pursuant to subsection (c) or (g), then the court shall enter a judgment in favor of the victim or the victim's beneficiary and against the defendant for the amount of the unpaid balance of the restitution.

     (6)  At the hearing conducted in accordance with this subsection (h), the only issues over which the court shall have jurisdiction is whether the defendant was properly served in accordance with the Tennessee rules of civil procedure, whether the restitution order entered against the defendant pursuant to this section has been satisfied by the defendant and, if not, the amount of restitution still owed by the defendant.

     (7)  A civil judgment entered pursuant to this subsection (h) shall remain in effect for a period of ten (10) years from the date of entry and shall be enforceable by the victim or the victim's beneficiary in the same manner and to the same extent as other civil judgments are enforceable.

[Acts 1989, ch. 591, § 6; 1996, ch. 699, §§ 3, 4; 2000, ch. 833, § 1.]