IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FEBRUARY SESSION, 1999 FILED
March 31, 1999
Cecil W. Crowson
STATE OF TENNESSEE, )
Appellate Court Clerk
) No. 01C01-9803-CC-00153
Appellee )
) GILES COUNTY
vs. )
) Hon. William B. Cain, Judge
SAMUEL KIMOE ROBINSON, )
) (Revocation of Probation)
Appellant )
For the Appellant: For the Appellee:
Samuel K. Robinson, Pro Se John Knox Walkup
201 East Sixth Street Attorney General and Reporter
Columbia, TN 38401
Georgia Blythe Felner
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
T. Michael Bottoms
District Attorney General
252 N. Military Avenue
Lawrenceburg, TN 38464
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Samuel Kimoe Robinson, proceeding pro se, appeals from the
order of the Giles County Circuit Court revoking his probation. On appeal, the
appellant contends that he was denied minimal due process guaranties.
Following review, we affirm the judgment of the trial court.
BACKGROUND
On February 20, 1997, the appellant pled guilty to twenty-two criminal
offenses. These included aggravated burglary, burglary, theft and vandalism. For
these crimes, he received an effective fifteen year sentence with all time suspended.
The conditions of his probated sentence included scheduled restitution payments
and payments for cost and supervision fees.
On March 13, 1997, after being on probation for three weeks, a probation
violation warrant issued which charged violation of the following rules: Rule 1, failure
to obey the law; Rule 2, failure to report all arrests; Rule 4, failure to obtain
employment; Rule 5, leaving the state without permission; Rule 6, failure to report to
probation officer; Rule 8, failure to pay required fees; Rule 9, failure to submit to
scheduled drug screens; and Rule 10, special conditions - failure to pay restitution.
Of the ten rules of probation, the appellant violated all but two; however, in his
closing statement at the revocation proceeding, he acknowledged violation of Rule
7, use of drugs, when he related, “I was upset at myself for going back to drugs, just
almost maybe four days after getting out of jail.” The only violation untouched by
the appellant was Rule 3, possession of a firearm. The probation violation warrant
related additional pending burglary and theft charges against the appellant which
occurred on March 6, 1997 in Giles County. The appellant was eventually arrested
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in Racine, Wisconsin, and transported back to Giles County. The record indicates
that the probation violation warrant was served on the appellant on May 12, 1997.
On March 3, 1998, a probation violation hearing was held in the Circuit Court
of Giles County. With the exception of denying the new arrest charges in Giles
County, the appellant presented no defense to the alleged rule violations for which
he was charged. In mitigation, he related to the court:
Pulaski is a very small town and there is a lot of temptation around. . . .
That’s why eventually I got tired of it and I called my friend and we left
. . . I was upset at myself for going back on drugs . . . I left here with
the intent to start over and do maybe what I was supposed to do at
least half way. . . .
At the conclusion of the hearing, the trial court entered into the record
detailed findings of fact supporting revocation of the appellant’s probation.
ANALYSIS
The appellant does not dispute the fact that the proof was sufficient to
support revocation of his probationary status. Rather, on appeal, he argues (1)
violation of his Sixth Amendment right to a speedy trial and (2) various due process
violations. The State argues that these two enumerated issues were not raised by
the appellant at trial level and are presented for review for the first time on appeal.
Generally, appellate courts review only questions presented for determination
in the lower court. Hester v. State, 450 S.W.2d 609, 611 (Tenn. Crim. App. 1969).
During the appellant’s opening statement at the revocation hearing, he alluded to a
probationer’s right to a “reasonably prompt hearing” and to a probationer’s due
process rights. No request for relief upon these generalized grounds was ever
presented and it is altogether unclear the context in which these statements were
made. Rule 47, Tenn. R. Crim. P., requires that a motion “shall state with
particularity the grounds upon which it is made and shall set forth the relief or order
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sought.” Because we find these issues are now being raised for the first time on
appeal, we find them to be waived. Tenn. R. App. P. 36(a). Notwithstanding
procedural default, we elect review of the appellant’s issues.
A . SPEEDY T RIAL CLA IM
The appellant asserts that his constitutional right to a speedy trial was denied
because of the excessive delay between the date of his arrest and the scheduled
probation hearing.1 In his brief, the appellant contends that the delay was “10.75"
months. The record, however, is silent as to when the appellant was returned to the
state of Tennessee following his arrest and incarceration in Wisconsin. Even
assuming for argument’s sake that the occasioned delay was “10.75" months, a
mere lapse of time, absent more, does not constitute a denial of the right to a
speedy trial. State v. Bishop, 493 S.W.2d 81, 84 (Tenn. 1973); State v. Ensley, 956
S.W.2d 502, 509 (Tenn. Crim. App. 1996), perm. to appeal denied, (Tenn. 1997). In
Bishop, 493 S.W.2d at 84, our supreme court adopted the Barker v. Wingo, 407
U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972), four part balancing test to determine
whether the right to a speedy trial has been abridged. If the length of the delay is
not presumptively prejudicial, the other balancing factors need not be considered.
Barker, 407 U.S. at 530, 92 S.Ct. at 2192. A delay of one year or longer “marks the
point at which courts deem the delay unreasonable enough to trigger the Barker
inquiry.” Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, n. 1
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In Allen v. State , 505 S.W.2d 715, 719 (Tenn. 1974), our supreme court extended the
right to a speedy trial to probation revocation proceedings. Speaking for the court in Allen, Special
Justice Leech concluded that a probation revocation proceeding is a criminal prosecution. In so
holding, the court relied upon the Sixth Amendm ent provision, “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial . . .,” (emphasis in original), and Article 1,
§ 9 of the T ennes see C onstitution p rovision, “ [t]hat in all criminal prosecutions, the accu sed ha th
the right to . . . a sp eedy pub lic trial . . . .” (emph asis in origina l). Allen, 505 S.W .2d 717- 718. W e
note, however, that following the Allen decision , num erous fe deral cou rts have h eld that the S ixth
Amendment right to a speedy trial does not apply to “probation revocation proceedings, since they
are not ‘crim inal proce edings’” w ithin the m eaning o f the con stitutional gua ranty. See United
States v. Jackson, 590 F.2 d 121, 12 2-123 (5 th Cir.), cert. denied, 441 U.S. 912, 99 S.Ct. 2012
(1979) ( citation om itted); see also United States v. Tippens, 39 F.3d 88, 89 (5th Cir. 1994 ); United
States v. Taylor, 931 F.2 d 842, 84 8 (11th C ir. 1991), cert. denied, 502 U.S. 1102, 112 S.Ct. 1191
(1992);; United States v. Williams , 558 F.2 d 224 (5 th Cir. 197 7); United States v. Sackinger, 537
F. Supp . 1245, 12 48, n. 3 (W .D. N.Y. 19 82), aff’d , 704 F.2 d 29 (2d Cir. 1983 ).
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(1992). Because we find the alleged delay was not presumptively prejudicial, we
conclude the appellant was not denied his right to a speedy trial.
B . DUE PROCESS
This state recognizes that a probationer has a liberty interest which is
protected by due process of law. State v. Wade, 863 S.W.2d 406, 408 (Tenn.
1993); State v. Stubblefield, 953 S.W.2d 223 (Tenn. Crim. App. 1997); Practy v.
State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974), cert. denied, (Tenn. 1975).
Accordingly, the appellant contends that his due process rights were violated by the
State’s: (1) failure to provide the “guaranteed” preliminary hearing following his
arrest for revocation of probation; (2) failure to be “served a written notice of
violations;” (3) failure to be “given a disclosure of prepatory [sic] evidence prior to
the hearing;” and (4) failure to be provided with “a written decision stating facts as to
why revocation ensued.” See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756
(1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972).
The State contends that, under our statutory scheme, the preliminary hearing
is not required. We agree. The appellant erroneously relies upon Gagnon, 411
U.S. 778, 93 S.Ct. 1756 and Morrissey, 408 U.S. 471, 92 S.Ct. 2593, for the
proposition that he is guaranteed a preliminary hearing. However, Tennessee’s
statutory scheme does not require a preliminary hearing in probation revocation
proceedings and fully complies with constitutional requirements. See Practy, 525
S.W.2d at 682 (“proceedings in this State for revocation . . . more than comply with
the mere minimal requirements stated in Morrissey and Gagnon”); see also Massey
v. State, 929 S.W.2d 399, 401 (Tenn. Crim. App. 1996).
Next, the appellant contends that he was not served with a written notice of
the violations. A defendant on probation is entitled to a written notice of the
allegations that form the basis for the revocation proceeding. Gagnon, 411 U.S. at
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786, 93 S.Ct. at 1761-1762. As previously noted, the record establishes that the
appellant was served with the warrant including the affidavit containing all of the
alleged violations on May 12, 1997.
Third, the appellant contends the State denied him due process by failing to
provide disclosure of evidence prior to the hearing. Specifically, he contends the
State failed to disclose “various exhibits of evidence” used at the hearing and “two
witnesses” that testified preventing him from preparing an adequate defense. The
record is void of any request by the appellant to examine any evidence, nor is there
evidence that this right was denied by the State. See State v. Robinson, 03C01-
9709-CR-00405 (Tenn. Crim. App. at Knoxville, June 3, 1998).
With regard to the final alleged due process violation, the appellant contends
that he was not provided a written decision indicating the reasons his probation was
revoked. The trial court made oral findings of fact on the record at the conclusion of
the hearing summarizing the evidence and grounds for the appellant’s probation
revocation. This court has held that the trial court’s authentication of a transcript of
the hearing in which the trial court’s oral findings are included, meet this requirement
of due process. State v. Delp, 614 S.W.2d 395, 397 (Tenn. Crim. App. 1980); State
v. Crowe, 03C01-9606-CC-00225 (Tenn. Crim. App. at Knoxville, July 29, 1997).
In sum, the appellant was given prior notice of the revocation hearing, notice
of the alleged violations, the right to cross-examine the two witnesses, call witnesses
in his defense, and testify on his own behalf. The requirements of due process were
satisfied.
The judgment of the trial court is affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
_________________________________
JAMES CURWOOD WITT, JR., Judge
_________________________________
JOHN EVERETT WILLIAMS, Judge
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