State of Tennessee v. Joseph Gevedon (Dissent)

11/29/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 13, 2021
STATE OF TENNESSEE v. JOSEPH GEVEDON
Appeal from the Circuit Court for Giles County
No. CR-14841, CR-14842 Stella L. Hargrove, Judge
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No. M2020-00359-CCA-R3-CD
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JOHN EVERETT WILLIAMS, P.J., dissenting.
I respectfully disagree with the majority’s conclusion that this court is without
jurisdiction to hear the appeal because no final judgment has been entered.
Tennessee Rule of Appellate Procedure 3(b) provides that a criminal defendant
has “a right to appeal when the trial court has entered a final judgment of conviction.”
State v. Comer, 278 S.W.3d 758, 760-61 (Tenn. Crim. App. 2008) (quotation omitted).
However, “‘Rule 3 appeals … may be taken only from final judgments.’” State v.
William Chandler Daniels, No. E2009-02172-CCA-R3-CD, 2010 WL 5343776, at *1
(Tenn. Crim. App. Dec. 23, 2010) (quoting State v. Maddox, 603 S.W.2d 740, 741 (Tenn.
Crim. App. 1980)). A judgment is considered final “‘when it decides and disposes of the
whole merits of the case leaving nothing for the further judgment of the court.’” State v.
David Allan Bohanon, No. M2012-02366-CCA-R3-CD, 2013 WL 5777254, at *3 (Tenn.
Crim. App. Oct. 25, 2013) (quoting Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d
446, 460 (Tenn. 1995)).
This court has concluded that it lacked jurisdiction where the judgment
“incorporated by reference” an earlier restitution order, which provided that “Payment
Schedule shall be set by the Court upon completion of the Appeal Process.” Comer, 278
S.W.3d at 760-62; see State v. Rodney Northern, No. E2009-01969-CCA-R3-CD, 2010
WL 2852288, at *2 (Tenn. Crim. App. July 21, 2010) (concluding that this court lacked
jurisdiction where the judgment of conviction stated restitution was “TBD @ hearing”
and the subsequent restitution order was not incorporated into and did not purport to
amend the judgment and delegated establishing a payment schedule to a probation
officer). In Comer, this court reasoned that the judgment stating that the restitution
payment schedule would be set after an anticipated appeal made the order “functionally
incomplete and … necessarily interlocutory in nature.” Comer, 278 S.W.3d at 760.
However, this court also has concluded that it had jurisdiction where the judgment of
conviction stated that restitution would be set at a later hearing and the subsequent
restitution order set the restitution amount and payment schedule, and this court
determined that the judgment of conviction and the subsequent restitution order, when
taken together, constituted a “final judgment.” David Allan Bohanon, 2013 WL
5777254, at *3-4; see William Chandler Daniels, 2010 WL 5343776, at *2-3 (concluding
that this court had jurisdiction where the judgment of conviction stated that restitution
would be set at a later hearing and the subsequent restitution order set the restitution
amount but did not set a payment schedule and reasoning that between the judgment of
conviction, which referenced the later restitution hearing, and the order resulting from
that hearing, the record contained a “final order”).
In the present case, the judgment of conviction, entered on September 23, 2019,
expressly stated, “Restitution hearing to be held.” I agree that this judgment of
conviction, standing alone, did not constitute a final order because the judgment
expressly stated that the trial court intended to resolve additional issues involving
restitution. See Comer, 278 S.W.3d at 760. Following a hearing, the trial court entered
an order on February 25, 2020, setting restitution, thus resolving the remaining issue to
be determined, and there is nothing in the record suggesting that the trial court anticipated
further action beyond the restitution order. Although the trial court failed to include a
payment schedule in the order, the failure to provide a payment schedule does not deprive
this court of jurisdiction but simply involves an error in the order. See William Chandler
Daniels, 2010 WL 5343776, at *2-3 (holding that that the judgment form and the
restitution order, when considered together, constituted a final judgment for purposes of
this court’s jurisdiction but concluding that the trial court erred in failing to consider the
defendant’s ability to pay in ordering restitution and in failing to set a restitution payment
schedule).
I conclude that between the judgment of conviction referencing a later restitution
hearing and the order resulting from that hearing, the appellate record includes a final
judgment and provides a sufficient basis for this court to invoke its jurisdiction. See
David Allan Bohanon, 2013 WL 5777254, at *3-4; William Chandler Daniels, 2010 WL
5343776, at *2-3. Turning to the issues raised by the Defendant, I conclude that the trial
court properly exercised its discretion in revoking the Defendant’s probation and
requiring him to serve his sentence in confinement as a result of the Defendant’s being
subsequently charged with driving on a revoked license and his failing a drug test. See
T.C.A. §§ 40-35-309, -310(e). However, I further conclude that the trial court erred in
setting restitution without considering the Defendant’s future ability to pay. T.C.A. § 40-
35-304(d) (2019), amended by 2021 Tennessee Laws Pub. Ch. 413 (eff. date Jan. 1,
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2022).1 Accordingly, I would remand the case for further findings regarding the
Defendant’s financial resources and ability to pay, as well as the time of payment if
restitution is ordered. I would otherwise affirm the trial court’s judgment.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
1
The General Assembly recently amended section 40-35-304(d) to provide, “In determining the
amount and method of payment or other restitution, the court may consider the financial resources and
future ability of the defendant to pay or perform.” 2021 Tennessee Pub. Acts Ch. 413 § 2 (eff. date Jan.
1, 2022) (emphasis added). However, this amendment is not effective until January 1, 2022, and,
therefore, it has no impact on the outcome of this appeal.
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