IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER, 1997 SESSION
December 4, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) No. 03C01-9702-CC-00050
Appellee, )
) Blount County
vs. )
) Honorable D. Kelly Thomas Jr., Judge
DANIEL WILSON, )
)
) (Probation Revocation)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
SHAWN G. GRAHAM JOHN KNOX WALKUP
Assistant District Public Defender Attorney General & Reporter
419 High St.
Maryville, TN 37804 MARVIN E. CLEMENTS, JR.
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
MICHAEL L. FLYNN
District Attorney General
PHILIP MORTON
Assistant District Attorney General
363 Court St.
Maryville, TN 37804-5906
OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT
JUDGE
OPINION
Daniel Wilson, the appellant, appeals pursuant to Rule 3 of the
Tennessee Rules of Criminal Procedure from the trial court's revocation of his
probation. This is his third violation of probation. The gravamen of his complaint
is that the trial court abused its discretion in ordering him to serve his sentence in
incarceration.
In September, 1993, the appellant entered a guilty plea to two counts
of selling a Schedule VI substance (marijuana). He was sentenced to serve an
aggregate sentence of one year in the county jail in May of 1994. The court
ordered that he serve seven weekends and then serve two years on supervised
probation. In addition, the court ordered the appellant to pay two thousand dollars
in costs, to perform one hundred hours of public service, to reimburse the Blount
Metro Narcotics Unit $305 in lieu of any restitution, and to obtain his G.E.D.
In December of 1995, the appellant conceded that he had violated his
probation, and the trial court ordered him to serve 45 days.1 In April , 1996, he was
again cited for a violation of probation for failure to pay probation fees, court costs,
and fines. The court ordered that he pay $400 on the costs and fines prior to June
18, 1996.2 On June 19, 1996, the trial court extended his probationary period for
two additional years, ordered that he pay his probation fees in full within two
months, and required that he pay $50 per week toward his fines, costs, and
restitution. Almost immediately, he once again violated the conditions of his
probation by failing to report on July 12, August 7, and August 23. He paid nothing
on his court costs, fines, and restitution, and on August 19, a drug screen showed
positive for THC. In addition, he had served no community service and had never
received his G.E.D. A third revocation hearing was held on October 4, 1996. The
appellant once again admitted that he had violated the conditions of his probation.
1
The record does not include the reason for the first revocation proceeding.
2
The record indicates that the appellant complied with this order.
2
However, in mitigation, he testified that he had been reporting regularly to his
probation officer since the first of September, that he was wearing an electronic
monitoring device, and that his subsequent drug screens were all negative. He said
that he had been working regularly and that he was living with and supporting his
wife and child. The trial judge revoked his probation and ordered him to serve the
remainder of his sentence.
The decision to revoke probation rests with the sound discretion of the
trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). In
order for a reviewing court to find an abuse of discretion, it must be established that
the record contains no substantial evidence to support the trial court's conclusion
that a violation has occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
In reviewing the trial court's findings, we must examine the record and determine
whether the trial court has exercised a conscientious and intelligent judgment that
is not arbitrary. State v. Harkins, 811 S.W.2d at 82. In this case, the record
unquestionably establishes the grounds for revocation because the appellant
unhesitatingly admitted that he had violated several technical conditions of his
probation.
Once a violation has been established "the trial court shall have the
right . . . to revoke the probation and suspension of sentence and cause the
defendant to commence the execution of the judgment as originally entered or
otherwise in accordance with Section 40-35-310." Tenn. Code Ann. § 40-35-311(d)
(Supp. 1996). Once a violation occurs, the court must determine and implement the
action which will "subserve the ends of justice and the best interests of both the
public and the defendant." State v. David W. Cardwell, No. 03C01-9211-CR-00390,
slip op. at 6 (Tenn. Crim. App., Knoxville, June 29, 1993)(quoting Hooper v. State,
201 Tenn. 156, 297 S.W.2d 78, 91 (Tenn. 1956)).
The appellant has demonstrated a disregard for the law by repeatedly
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violating the conditions of his probation. Although he has not been charged or
convicted of another crime, he has continued to disregard the simple requirement
to report to his probation officer. He has not sought a G.E.D. as ordered by the
court. For more than two years he totally disregarded his obligation to perform
community service and made no effort to pay his probation fees, court costs, and
restitution until he was in imminent danger of incarceration. The appellant's desire
to support his family is to his credit, and his willingness to admit his errors is
admirable. Unfortunately, his record does not inspire any confidence in his ability
to persist in these worthwhile endeavors, and shorter periods of incarceration have
not convinced the appellant of the seriousness of his behavior. The trial court made
a conscientious and intelligent decision to revoke the appellant's probation, and the
court's order that the appellant serve the balance of his sentence is supported by
the record.
We affirm the judgment of the trial court.
__________________________
CURWOOD W ITT, Judge
______________________________
JOE B. JONES, Judge
______________________________
PAUL G. SUMMERS, Judge
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