IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
NOVEMBER SESSION, 1999
January 4, 2000
Cecil Crowson, Jr.
Appellate Court Clerk
JEFFREY SCOTT MILES, *
* No. 03C01-9903-CR-00103
Appellant, *
* CUMBERLAND COUNTY
vs. *
* Hon. LEON BURNS, JR., Judge
STATE OF TENNESSEE, *
* (Writ of Error Coram Nobis)
Appellee. *
For the Appellant: For the Appellee:
Jeffrey Scott Miles, Pro Se Paul G. Summers
NECX CCA Caller #1 Attorney General and Reporter
Roan Mountain, TN 37687
Patricia C. Kussmann
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Nashville, TN 37243-0493
William Edward Gibson
District Attorney General
David Patterson
Asst. District Attorney General
145 S. Jefferson Avenue
Cookeville, TN 38501
OPINION FILED:
AFFIRMED
David G. Hayes, Judge
OPINION
The appellant, Jeffrey Scott Miles, appeals from the trial court’s denial of the
writ of error coram nobis. Proceeding pro se, the appellant seeks issuance of the
writ in order to correct errors from the judgment of the trial court revoking his
probation and remanding him to the custody of the Department of Correction.
After review of the record, we affirm the denial of the issuance of a writ of
error coram nobis.
Background
In June of 1997, the appellant pled guilty to aggravated assault and received
a split confinement sentence of four years with thirty days to be served in the jail.
Shortly after his release from the jail and while on probation, the appellant was again
charged with violation of an order of protection, aggravated assault and reckless
endangerment.1 Based upon these new charges, a probation violation warrant was
obtained charging violation of “Rule #1,” failure to obey the law.
The trial court conducted a revocation hearing on September 26, 1997.
Based upon the testimony of the victim and a witness the trial court found the proof
established a violation of “Rule #1" and ordered revocation of the appellant’s
suspended sentence. In view of the appellant’s incarceration in the Department of
Correction, the three pending charges against the appellant were subsequently
dismissed by the State.
On September 30, 1998, the appellant filed a pro se petition for writ of error
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The victim of the appellant’s assault was his girlfriend, Tammy Nelson. The first
aggravated assault resulted in broken bones to her face that had to be wired back into place. The
assault leading to the probation revocation stemmed from the appellant’s action in dragging the
victim approximately twenty feet with his vehicle.
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coram nobis relief. In the petition, the appellant alleged (1) he “has never had the
opportunity to defend himself from the falsity of the new charges for which his
probation was revoked and incarcerated;” (2) newly discovered evidence in that he
learned that the day after the incident Tammy Nelson was overheard by the
appellant’s mother telling a representative of the District Attorney’s Office that she
did not want the appellant to go to prison over this incident; and (3) “no preliminary
hearing . . . of the new charges were ever had by the [appellant].” As such, the
appellant seeks a new hearing on his violation of probation warrant.
Analysis
A writ of error coram nobis, an exceedingly narrow remedy, will lie for
subsequently or newly discovered evidence only if the petition relates (1) the
grounds and the nature of the newly discovered evidence; (2) why the admissibility
of the newly discovered evidence may have resulted in a different judgment had the
evidence been admitted at the previous trial; (3) the petitioner was without fault in
failing to present the newly discovered evidence at the appropriate time; and (4) the
relief sought by the appellant. State v. Hart, 911 S.W.2d 371, 374-375 (Tenn. Crim.
App.), perm. to appeal denied, (Tenn. 1995). Moreover, the decision to grant or
deny a petition for the writ of error coram nobis on the ground of newly discovered
evidence rests within the sound discretion of the trial court. Hart, 911 S.W.2d at
375.
In his petition, the appellant asserts as newly discovered evidence (1) that he
was never convicted of the charges leading to his revocation; and (2) that his mother
would testify that on the day after the incident she overheard Tammy Nelson telling
the District Attorney’s Officer that she did not want the appellant to go to prison over
this incident. Initially, we note that the appellant has failed to specifically
encompass these allegations in his appellate brief. Thus, normally, these issues
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would be waived. See Tenn. R. App. P. 27(a)(7). Nonetheless, in consideration of
the pro se posture of this appeal and because these allegations are tangentially
connected to his assertion that his probation was revoked absent proof of his guilt,
we proceed to address both of these claims.
First, the appellant has offered no factual reason as to why he was without
fault in failing to present his mother’s testimony at the time of the revocation hearing.
Hart, 911 S.W.2d at 374-375. We fail to find such testimony from the appellant’s
mother, who testified at the revocation hearing, “newly discovered.” Even if this
evidence was “newly discovered,” the testimony of his mother constitutes hearsay
evidence, not legal evidence. See James E. Newsome v. State, No. 01C01-9710-
CR-00459 (Tenn. Crim. App. at Nashville, Sept. 30, 1998), perm. to appeal denied,
(Tenn. Apr. 19, 1999). Moreover, there is no indication that the admission of this
testimony would have resulted in a different judgment. See Hart, 911 S.W.2d at
374-375. Thus, the allegation is without merit.
Additionally, the fact that the appellant was never convicted of the charges
leading to his revocation is irrelevant to the trial court’s decision. First, the State is
not required, in a revocation hearing, to prove the appellant’s guilt of the offenses
forming the basis of the revocation beyond a reasonable doubt. See State v.
Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Although a mere
accusation is not sufficient to justify revoking probation, the State need only prove
by a preponderance of the evidence that the appellant violated the terms of his
probation by failing to obey the laws of the state. See Tenn. Code Ann. § 40-35-
311(e) (1998 Supp.). Accordingly, the appellant’s allegation that his due process
rights were violated because the State failed to prove his guilt of the new charges is
without merit.
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Finally, the appellant contends that the failure of the court to hold a
preliminary hearing prior to revoking his probationary status violated his due process
rights. This claim, as it alleges constitutional due process error, does not qualify for
relief in the form of a writ of error coram nobis. Additionally, although this claim is
cognizable in a post-conviction petition, see Tenn. Code Ann. § 40-30-203 (1997),
this court has previously held that Tennessee’s statutorily mandated proceedings
“more than comply with the mere minimal requirements stated in . . . Gagnon.” See
Massey v. State, 929 S.W.2d 399, 401-402 (Tenn. Crim. App. 1996); see also State
v. Samuel Kimoe Robinson, No. 01C01-9803-CC-00153 (Tenn. Crim. App. at
Nashville, Mar. 31, 1999), perm. to appeal denied, (Tenn. Jun. 28, 1999). This
claim of error is without merit.
The order of the trial court denying the appellant the relief requested is
affirmed.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
______________________________________
ALAN E. GLENN, Judge
______________________________________
JOE H. WALKER, III, Special Judge
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