IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY 1997 SESSION
October 8, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) No. 03-C-01-9608-CR-00298
APPELLEE, )
) Knox County
v. )
) Richard R. Baumgartner, Judge
DEBRA SUE BENSON, )
) (Revocation of Probation)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Paula R. Voss John Knox Walkup
Assistant Public Defender Attorney General & Reporter
1209 Euclid Avenue 500 Charlotte Avenue
Knoxville, TN 37921 Nashville, TN 37243-0497
(Appeal Only)
Michael J. Fahey, II
John Halstead Assistant Attorney General
Assistant Public Defender 450 James Robertson Parkway
1209 Euclid Avenue Nashville, TN 37243-0493
Knoxville, TN 37921
(Trial Only) Randall E. Nichols
District Attorney General
OF COUNSEL: P. O. Box 1468
Mark E. Stephens Knoxville, TN 37901-1468
District Public Defender
1209 Euclid Avenue Marsha L. K. Selecman
Knoxville, TN 37921 Assistant District Attorney General
P. O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED: _______________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Debra Sue Benson (defendant), appeals as of right from a judgment
of the trial court revoking her probation. The defendant did not contest the grounds
established by the State of Tennessee to support the revocation of her probation. In this
Court, the defendant contends she was suffering from a mental illness when the violations
of her probation occurred, and, as a result, she was not capable of complying with the
conditions of probation previously imposed by the trial court. After a thorough review of the
record, the briefs submitted by the parties, and the law governing the issue presented for
review, it is the opinion of this Court the judgment of the trial court should be affirmed.
The State of Tennessee established at the revocation hearing that the defendant
violated the conditions of her probation in several ways. The violations included (a) moving
without leaving a forwarding address or notifying the probation officer who supervised her
probation; (b) failing to report to her probation officer after December 31, 1990; (c) making
it impossible for the supervising probation officer to visit the defendant’s residence or place
of employment; (d) failing to pay probation fees; (e) being unavailable for random drug
screens; (f) failing to maintain full-time employment; (g) being arrested and convicted of
two criminal offenses in Knox County; and (h) being arrested in North Carolina for two
attempts to commit larceny.
The probation officer expressed his view regarding continued supervision of the
defendant if her probation was reinstated. He stated: “I think Miss Benson would be a very
high risk if returned to probation.”
The defendant did not testify at the revocation hearing. She did not present any
witnesses. The defendant introduced into evidence medical records from the University
of Tennessee Memorial Hospital and Peninsula Hospital. The first notation regarding a
mental illness is contained in the University of Tennessee hospital records. On March 2,
1992, there is a notation that the defendant has a psychosis. She had already been
prescribed medication for her condition approximately three weeks prior to this visit. There
is nothing contained in the records to indicate the defendant was hospitalized at that time.
The records indicate the defendant had an appointment at a facility, but it is not clear what
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type of facility she was to contact because only initials are used in the records. There is
nothing contained in the records to establish she could not comply with the conditions of
her probation.
There is nothing contained in the record regarding the defendant’s condition
between March 2, 1992 and November 21, 1995 when the defendant entered Peninsula
Hospital. She was released on November 30, 1995. The reason given for the defendant’s
release from the hospital was: “[Patient] discharged at approximately 1600 [hours] per
court decision. . . .” It appears the “court” -- the name of the court is not mentioned --
determined the defendant should not be committed for treatment on November 28, 1995.
The Peninsula records establish the defendant failed to take the medication prescribed for
her condition regularly, and this was described as a “problem.”
Whether the probation of an accused should be revoked is a question which rests
within the sound discretion of the trial court. State v. Conner, 919 S.W.2d 48, 49 (Tenn.
Crim. App. 1995); State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); State
v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Thus, the standard of appellate
review in these cases is whether the trial court abused its discretion by revoking the
accused’s probation. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); Conner, 919
S.W.2d at 49-50; Leach, 914 S.W.2d at 106; State v. Smith, 909 S.W.2d 471, 473 (Tenn.
Crim. App. 1995). Before an appellate court may reverse the judgment of the trial court
in these cases, the appellate court must find the record is void of substantial evidence to
support the trial court’s findings of fact that the accused violated the conditions imposed
when placed on probation. Conner, 919 S.W.2d at 50.
There is absolutely no evidence contained in the record which would permit the trial
court or this Court to conclude the defendant was suffering from a mental condition when
she committed most of the violations. The first recorded incident was on March 2, 1992,
when the defendant was examined and released from the University of Tennessee
Hospital. The violations occurred following December 31, 1990, the date she quit reporting
to her supervising probation officer. This was over two years prior to the March 2, 1992,
date.
The defendant was released from Peninsula on November 30, 1995. This decision
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was made after a court found the defendant should not be kept at Peninsula for evaluation
and/or treatment. Again, there is absolutely no evidence contained in the record which
would permit the trial court or this Court to conclude that the defendant was unable to
comply with the terms of her probation due to a mental illness.
This Court is of the opinion the trial court did not abuse its discretion in revoking the
defendant’s probation. There were ample violations of the conditions of her probation.
Most of the grounds occurred before there was any indication the defendant was suffering
from a form of mental illness.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
JOSEPH M. TIPTON, JUDGE
______________________________________
CURWOOD WITT, JUDGE
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