IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL 1998 SESSION
FILED
April 21, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9709-CC-00336
Appellee, )
) MADISON COUNTY
VS. )
) HON. FRANKLIN MURCHISON,
LARRY CUNNINGHAM, ) JUDGE
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE MORTON GOOGE JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
MICHAEL RASNAKE (at hearing) JANIS L. TURNER
Assistant Public Defender Assistant Attorney General
227 W. Baltimore Street Cordell Hull Building, 2nd Floor
Jackson, TN 38301-6137 425 Fifth Avenue North
Nashville, TN 37243-0493
JOHN E. HERBISON (on appeal)
2016 Eighth Avenue South JAMES G. WOODALL
Nashville, TN 37204-2202 District Attorney General
LAWRENCE E. NICOLA
Assistant District Attorney General
225 Martin Luther King, Jr. Dr.
P.O. Box 2825
Jackson, TN 38302-2825
OPINION FILED:
REVERSED AND REMANDED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Larry Cunningham, appeals the Madison County Circuit
Court’s order affirming the revocation of his probation by the Municipal Court of
Jackson, Tennessee. The defendant contends the trial court erred in not hearing
his appeal from municipal court de novo. We agree with the defendant, reverse
the revocation, and remand to the trial court to conduct a de novo review.
PROCEDURAL HISTORY
The defendant pled guilty in the Municipal Court of Jackson, Tennessee,
to one (1) count of assault and one (1) count of resisting arrest. He received
consecutive sentences of eleven (11) months, twenty-nine (29) days, and was
fined $100 for each offense. The sentences were suspended except for five (5)
days on the resisting arrest charge.
The defendant’s probation officer subsequently filed a violation report, and
the municipal court revoked the defendant’s probation. The defendant timely
filed an appeal to the Circuit Court, which affirmed the revocation. The Circuit
Court specifically declined to consider the revocation de novo, but rather utilized
an abuse of discretion standard. The Circuit Court order “affirmed” the
revocation finding that the municipal court “did not abuse its discretion nor act
arbitrarily or capriciously by terminating the defendant’s probation . . .”
ANALYSIS
The defendant contends the Circuit Court denied him his right to a de
novo hearing. Although the state concedes the defendant was entitled to a de
novo hearing, it contends the defendant in fact received a de novo hearing.
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When a defendant has been arrested and charged with a probation
violation, he has a right to a hearing where counsel may represent him and
introduce testimony on his behalf. Tenn. Code Ann. § 40-35-311(b). If the court
finds by a preponderance of the evidence that the defendant violated the
conditions of his probation and reinstates his sentence, the defendant has the
right to appeal the judgment. Tenn. Code Ann. § 40-35-311(d). The court to
which the defendant appeals is determined by which court heard the revocation
proceeding. When a defendant is dissatisfied with a judgment received in a
municipal court, as is this defendant, the defendant may appeal the judgment to
the Circuit Court subject to the same terms and restrictions as an appeal from
general sessions court. Tenn. Code Ann. § 27-5-102. Appeals from general
sessions court “shall be heard de novo in the circuit court.” Tenn. Code Ann. §
27-5-108(c).
The Municipal Court of Jackson has state criminal jurisdiction. An appeal
from that court for the revocation of a suspended sentence goes to the Circuit
Court for a de novo hearing. State v. Parrish, 598 S.W.2d 840, 841 (Tenn. Crim.
App. 1980); State v. Gerald Bates, C.C.A. No. 01C01-9101-CR-00006, Sumner
County (Tenn. Crim. App. filed June 28, 1991, at Nashville). In a de novo
review, “the parties are entitled to a reexamination of the whole matter of law and
fact.” Richards v. Taylor, 926 S.W.2d 569, 570 (Tenn. App. 1996). The Circuit
Court is not concerned with what took place in the lower court; the matter is tried
as if no other hearing had occurred. Hohenberg Bros. Co. v. Missouri Pac. R.R.
Co., 586 S.W.2d 117, 119 (Tenn. App. 1979).
A de novo hearing encompasses more than just the presentation of proof.
The court must try the matter and render judgment as if no judgment had
previously been rendered. It is, therefore, incumbent upon the Circuit Court
hearing a probation revocation appeal to make an independent judgment
following the presentation of proof. This would include a consideration of the
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various sentencing options if there is a finding that the defendant violated the
terms and conditions of probation. Merely reviewing the judgment of the
municipal court for abuse of discretion does not satisfy the requirements of the
statute.
The written order of the Circuit Court reflects that “grounds exist and were
proven which demonstrate the defendant violated the terms and conditions of his
Municipal Court probation . . .” The state contends this satisfies the requirement
for a de novo hearing. However, our reading of the hearing transcript clearly
reveals that the Circuit Court did not rule upon the matter as if no hearing had
occurred in the municipal court. The trial court clearly applied an abuse of
discretion standard and “affirmed” the revocation by the municipal court.
Accordingly, we REVERSE AND REMAND this case to the Circuit Court
of Madison County for a de novo probation revocation hearing.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
_________________________
DAVID G. HAYES, JUDGE
_________________________
WILLIAM M. BARKER, JUDGE
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