Keisha M. Howard was indicted for theft of property valued over $60,000 and for violating the Tennessee Computer Act, both classified as Class B felonies. After entering guilty pleas in the Bradley County Criminal Court, the trial court sentenced her as a Range I standard offender to concurrent eight-year sentences, with conditions allowing her to apply for Community Corrections. Initially, the court ordered her to pay $215,000 in restitution, which she claimed was unpayable, leading to a motion for clarification. The court then determined her restitution obligation to be $1,000 per month for eight years, totaling $96,000. On appeal, Howard contested the reasonableness of this amount based on her financial situation. The appellate court reversed the trial court's restitution order, amending it to reflect a victim's loss of $156,951.30 and reducing her restitution obligation to $48,000, payable at $500 per month for eight years. The appellate court affirmed all other aspects of the trial court's judgments. During the plea hearing, evidence indicated that Howard, employed as a bookkeeper for Outland Travel, had committed theft and violated the Computer Crimes Act by deleting records and mismanaging funds, which led to operational issues for the business.
The business utilizes a program named TRAMS to manage bookings. Typically, customers pay cash to an agent, who then documents the transaction, creates a receipt, and hands the cash to Ms. Howard. Following the discovery of significant missing funds, it was found that both receipt books and certain computer programs were deleted. Ms. Davis and her employees spent months reconstructing the financial records due to these losses. Ms. Howard confessed to taking money but disputed the total amount, currently estimated to exceed $212,000. Detective White obtained Ms. Howard's bank records from 2007 and 2008, revealing over $60,000 in cash deposits. If the case proceeds to trial, Ms. Howard would need to explain these deposits, which could lead to scrutiny of her tax returns and potential federal inquiries. Upon being confronted about the missing funds, Ms. Howard claimed she would review financial transactions individually to locate the money. Ms. Davis had to suspend business operations to trace the missing funds, involving significant resources and employee time. Ms. Howard requested an expert, and it was noted that Ms. Davis cooperated fully with this expert. A subpoena was issued for the expert to testify, as their findings would support the case regarding the deposits into Ms. Howard’s accounts, which included substantial weekly cash deposits in addition to her salary from Outland Travel. During the February 11, 2011 sentencing hearing, Ms. Davis, the victim, testified about Ms. Howard's employment as a bookkeeper and the initial signs of theft when clients inquired about their payments. It was also revealed that Ms. Howard improperly deposited checks meant for Outland Travel into a different account tied to a cash-only business owned by Ms. Davis.
Davis discovered that Howard had routinely deposited checks made out to Outland Travel into the Farmer's Lake bank account. Upon reviewing the bank statements for these deposits, Davis found them missing, as well as folders of cash received from clients. Howard had manipulated the TRAMS system by deleting records of client payments, making it appear that clients had not paid. She also intercepted and misappropriated commission checks intended for Davis and other agents. By the end of 2008, Howard confessed to charging personal trips on Outland Travel's credit card and failing to reimburse the company, resulting in approximately $13,000 in unaccounted expenses. Davis noticed malfunctions in the TRAMS system, later linking them to Howard's manual deletions of information. After Howard's confession and her destruction of evidence in early 2009, including bank records and receipt books, Davis terminated her employment on January 8, 2009. In the years Howard was employed, only $850 was deposited into Outland Travel's account, whereas over $85,000 was deposited in 2009 alone. Following an investigation, Davis concluded that Howard had stolen over $200,000 from the company. Expert witness Herbert Tamer, a forensic accountant, stated he could not trace the missing cash due to inadequate controls and lack of bank statements. He identified only $4,554 in missing funds directly linked to Howard's bank account but admitted his analysis focused on her deposits rather than expenditures and did not include all cash deposits made by Howard.
Howard is currently employed at Express Employment, earning $10 an hour, after previously working at T-Mobile. She graduated high school and took some college courses but did not obtain a degree. Howard worked at Outland Travel from June 2003 until her termination in January 2009, having previously held positions in ticketing and accounting at Ocoee Travel Service. She has custody of her three daughters, who currently live with their paternal grandparents due to her arrest; they receive $308.74 weekly in child support from her ex-husband, which she hopes to regain once her daughters return to her.
Howard admitted to charging trips to Germany, Disneyworld, Jamaica, and a cruise to Outland Travel’s credit card and using travel insurance proceeds for personal benefit. She claimed to have paid her ex-boyfriend around $13,000 for these trips and supported his car resale hobby. While denying stealing $215,000, she estimated her theft at $35,000 to $40,000, potentially up to $60,000, stating she only stole enough to cover her bills.
Living with her boyfriend since July 2009, Howard reported no mental or physical issues affecting her ability to work and indicated she could pay $200 monthly in restitution. On cross-examination, she acknowledged earning $12.50 to $14.00 an hour at Outland Travel, managing most household expenses with her ex-boyfriend while committing theft.
Howard admitted to deleting incriminating data and destroying evidence related to the theft, complicating the calculation of the total amount stolen. Her bank statements revealed significant cash deposits, including nearly $10,000 in January 2008 and over $9,000 in February 2008, alongside withdrawals exceeding $6,000 in March 2008. She explained that some cash deposits were from cashing paychecks and child support checks, but also acknowledged depositing additional cash beyond documented sources during certain months.
Howard confirmed during redirect examination that she possessed no assets and had not purchased any significant items with stolen funds. The State sought $215,000 in restitution but acknowledged the court's role in assessing Howard's ability to pay. The defense highlighted twelve letters of recommendation for Howard and clarified that she disputed the total loss amount but accepted some restitution obligation.
At sentencing, the trial court deemed the victim's testimony credible regarding the $215,000 loss but found Howard's and Tamer's testimonies lacking credibility. The court sentenced Howard to eight years in the Department of Correction with eligibility to apply for the Community Corrections Program, stipulating a minimum monthly payment of $200 towards restitution, recognizing her inability to pay the full amount.
The court indicated uncertainty about any existing civil judgments against Howard and stated she would need to enter custody for the Community Corrections Program application. On February 14, 2011, Howard was sentenced as a Range I standard offender concurrently for theft and violating the Tennessee Computer Act, with restitution terms outlined.
On February 24, 2011, Howard filed a 'Motion for Clarification of Judgment' regarding her restitution obligations. At the March 9, 2011 hearing, the court declined to set a fixed monthly payment of $200 for a total of $19,200 in restitution without the victim's agreement and emphasized the necessity of a hearing on Howard's ability to pay. An evidentiary hearing was scheduled for March 10, 2011, where Howard provided testimony about her previous employment and earnings.
Howard worked briefly at T-Mobile earning $9.00 per hour before transitioning to temporary positions at Express Employment with an hourly wage of $10.00, resulting in a weekly net income of $330 to $350. She graduated high school and took some college courses in pre-pharmacy but recognized that her two felony convictions would likely bar her from pharmacy school and obtaining a pharmacy license. Howard reported skills in data entry, bookkeeping, and general office work, but noted job losses due to pending felony charges.
As of February 11, 2011, during her sentencing hearing, her monthly expenses included $225 for rent, $30 to $80 for electricity, $45 for her cell phone, and $328 for payments on her 2005 Volkswagen Jetta. She owed over $5,000 on a CitiBank MasterCard, making $80 to $90 monthly payments, and had an Orchard Credit Card with minimum payments of $60 to $70. Additionally, she had two educational loans totaling $4,500 with monthly payments of $110, car insurance at $85, a $350 debt to Verizon with payments of $20 to $30, and owed $1,600 to her daughter's orthodontist with payments of $195. Other debts included $55 to T-Mobile, $300 to Memorial Hospital with $100 monthly payments, and $350 to Volunteer Electric. Monthly grocery and gas expenses were approximately $200 and $140, respectively, leaving her with only $50 to $100 in the bank after all expenses. She reported no assets or savings.
Howard indicated she would receive $308.74 weekly in child support if her daughters lived with her. On cross-examination, she denied receiving regular financial support from her mother but acknowledged her mother's assistance in paying off a car and occasional help with bills. Currently living with her boyfriend, Kenneth Walker, who paid her expenses due to her unemployment, she stated she planned to contribute to bills once employed. Howard admitted to misusing stolen funds from Outland Travel for travel and bills, without establishing any educational or trust funds for her daughters. By the end of the hearing, she disclosed her acceptance as an independent contractor for a travel agency starting in early 2012, with expected earnings of $1,000 to $2,000 monthly, acknowledging that expenses would reduce her net income. She expressed a belief that she could manage $200 per month in restitution, while the court determined she owed a total of $215,000 in restitution.
The court determined that Howard was not a credible witness, while Davis was considered credible, leading to the conclusion that Howard owed $215,000 in restitution. The trial court initially did not specify a total restitution amount in its February 14, 2011 judgment, intending for Howard to pay more than $200 monthly. It allowed either party to seek modification of the restitution amount based on Howard's financial situation. The court recognized Howard's skills in sales as beneficial for her future income potential and noted her financial support from her family, which provided her the flexibility to manage her resources. Ultimately, the court mandated Howard to pay $1,000 per month for eight years, totaling $96,000 in restitution, after finding this amount appropriate based on her financial capabilities. The order was clarified on March 10, 2011, correcting the vagueness of the initial mandate and ensuring it complied with Tennessee law regarding restitution. Howard appealed this ruling on March 14, 2011, arguing the amount was excessive considering her financial resources. The State defended the trial court's assessment, stating the restitution amount reflected the victim's loss and was supported by evidence. Upon review, the restitution was modified to $500 per month for a total of $48,000 over eight years. The jurisdiction of the appeal was confirmed based on the February 14, 2011 judgment.
A criminal judgment typically becomes final thirty days after its entry unless a notice of appeal or a specific post-trial tolling motion is filed, as per Tenn. R. App. P. 4(a, c). After this period, a trial court generally lacks the authority to amend its judgment, except within the thirty days post-judgment and prior to an appeal notice. In Howard's case, he filed a 'Motion for Clarification of Judgment' on February 24, 2011, and the subsequent hearing and the March 10, 2011 'Order on Motion to Clarify,' along with Howard's notice of appeal on March 14, 2011, all occurred within the thirty-day timeframe. This means the trial court retained jurisdiction when it issued the amended order.
The document also addresses whether the February 14, 2011 judgment and the March 10, 2011 order were final judgments eligible for appeal. Conflicting court opinions exist regarding judgments that do not specify restitution amounts or payment schedules. Some cases denied jurisdiction due to incomplete judgments, while others exercised jurisdiction despite similar issues. According to Tennessee Rule of Appellate Procedure 3(b), a defendant can appeal only from a final judgment of conviction, as established by the Tennessee Supreme Court, which defines a final judgment as one that resolves all merits of the case, leaving no further matters for the court.
The February 14, 2011 judgment of conviction for theft utilized a standard form but lacked essential components, such as a total restitution amount, a payment schedule, and a specific payment amount, which prevented it from being classified as a 'final judgment.' The March 10, 2011 'Order on Motion to Clarify' was examined to determine if it amended the prior judgment to create a final judgment. Since this order was issued within thirty days of the initial judgment and before any notice of appeal, the trial court had jurisdiction. The order referenced the initial judgment and noted deficiencies, stating that a subsequent hearing had assessed Howard's financial resources, concluding she could afford to pay at least $96,000 over eight years. Thus, the March 10, 2011 order effectively amended the earlier judgment, rendering it final and eligible for appeal under Rule 3 of the Tennessee Rules of Appellate Procedure.
In her appeal, Howard contested the reasonableness of the restitution order, arguing that the trial court overestimated her earning potential and improperly considered financial assistance from family members, which had no legal obligation to support her restitution payments. The appeal is reviewed de novo, presuming the trial court's ruling is correct. Restitution is mandated for felony convictions involving theft or fraud, as per Tennessee law.
Restitution orders in Tennessee must adhere to the procedures outlined in Tennessee Code Annotated (T.C.A.) section 40-35-304, irrespective of section 40-20-116's applicability. Such orders aim to compensate the victim while also serving punitive and rehabilitative purposes for the defendant. There is no fixed formula for calculating restitution. When restitution is deemed appropriate, the court is mandated to direct the presentence service officer to assess and document the victim's financial loss in the presentence report. The restitution amount must be reasonable but does not have to match the victim's total pecuniary loss. During sentencing, the court must specify the restitution amount and payment schedule, which may allow for installment payments. The court is also required to consider the defendant's financial situation and future ability to pay. If restitution is not fully paid, the outstanding amount can be converted into a civil judgment. In this case, Howard pleaded guilty, receiving an eight-year concurrent sentence and was ordered to pay at least $200 monthly while eligible for a Community Corrections program. As part of her alternative sentencing, Howard is responsible for restitution until her sentence expires, with any payment schedule not extending beyond that date. The court had enough evidence to assess the victim's loss, but the calculation made by the trial court was unsupported by the record.
At the sentencing hearing, the State presented several exhibits detailing the victim's financial losses incurred due to Howard's actions. The total loss was calculated as $156,951.30, which included: $17,856.94 in missing cash from Outland Travel's deposits, $97,842.48 from Carnival Cruise bookings, $30,213.00 from Vacation Express bookings, and a corrected unpaid balance of $11,038.88 owed by Howard for trips charged to Outland Travel's credit card.
Additionally, the State introduced evidence showing that Howard deposited over $60,000 in cash into her bank accounts during the indictment period, but these amounts were not included in the loss calculation as they were not definitively linked to the stolen funds.
The trial court also considered Howard's financial situation, noting support from her mother, ex-husband, and future husband, which allowed her to manage her financial resources as she deemed appropriate. Howard acknowledged that her boyfriend was covering her expenses, and she received $308.74 weekly in child support.
Regarding her potential to pay restitution, the court reviewed her income history, projected earnings as an independent contractor, and regular expenses, which totaled $1,658.00 per month. Howard anticipated earning between $1,000 and $2,000 monthly from travel bookings, with business expenses to be deducted from this income. Her expenses included rent, utilities, insurance, loan payments, and groceries.
Howard reported various debts totaling over $12,000, including amounts owed to Citibank MasterCard, educational loans, Verizon, a daughter's orthodontist, T-Mobile, Memorial Hospital, and Volunteer Electric. The court assessed Howard’s financial situation alongside the victim’s loss of $156,951.30 and determined that the restitution should be reduced to $48,000, payable at $500 per month for eight years. The victim retains the right to petition for the full amount of the loss if Howard's financial circumstances improve. The court reversed the previous order requiring Howard to pay $1,000 per month, amending the restitution terms accordingly, while affirming all other judgments from the trial court.
