State v. John Mcbee, Jr. ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 5, 1999
AUGUST 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 03C01-9811-CR-00413
Appellee, )
) Knox County
v. )
) Honorable Ray L. Jenkins, Judge
JOHN W. McBEE, JR., alias, )
JOHN WARREN McBEE, alias, ) (Probation Revocation)
JOHN WARREN McBEE, JR., alias, )
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
MARK E. STEPHENS PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
DAVID GALL TODD R. KELLEY
Assistant Public Defender Assistant Attorney General
1209 Euclid Avenue 425 Fifth Avenue North
Knoxville, TN 37921 Nashville, TN 37243-0493
RANDALL E. NICHOLS
District Attorney General
ZANE M. SCARLETT
Assistant District Attorney General
400 Main Street
P. O. Box 1468
Knoxville, TN 37901-1468
OPINION FILED: _________________________________
AFFIRMED
ALAN E. GLENN, JUDGE
OPINION
The defendant, John W. McBee, Jr., entered guilty pleas to two counts of robbery
in January 1997, in the Knox County Criminal Court. In one case, the trial court sentenced
the defendant to six years, with nine months to be served in confinement followed by the
remainder of the sentence on probation. In the other case, the defendant received a four-
year suspended sentence and ten years of probation. These sentences were ordered to
be served consecutively. In February 1997, the defendant entered a guilty plea in the Knox
County Criminal Court to theft and received a one-year probationary sentence to be served
consecutively to the previous probationary sentences. These probationary sentences were
revoked in November 1998, following the issuance of a probation violation warrant, and the
defendant was ordered to serve these sentences. He filed an appeal as of right, claiming
that the trial court should not have revoked his probation. Based upon our review of the
record, and of applicable law, we affirm the action of the trial court.
A probation violation warrant issued for the defendant on November 20, 1997,
alleging that the defendant failed to report to his probation officer, the defendant failed to
pay supervision fees and court costs, and that his place of employment had gone out of
business. The warrant was later amended to include the allegation the defendant had
been convicted of three additional thefts. The defendant was arrested and a probation
revocation hearing was set for January 15, 1998. After the trial court released him on his
own recognizance, the defendant failed to appear for the revocation hearing. Eight months
later, the defendant was arrested and a revocation hearing was held on November 3, 1998.
The defendant did not dispute the above alleged violations, but asked the trial court to
consider an alternative to revocation.
The trial court revoked the defendant’s probation and ordered him to serve the
remainder of his sentence in confinement. The defendant timely appealed, listing one
issue: whether the trial court erred in revoking the defendant’s probation.
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The standard of review upon an appeal of an order revoking probation is the abuse
of discretion standard. In State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App.
1997), this Court stated that “if the record presents substantial evidence to support
revocation, the trial court’s action will be approved.” Likewise, in State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991), cited in Stubblefield, the court said that “[i]n order for a
reviewing court to be warranted in finding an abuse of discretion in a probation revocation
case, it must be established that the record contains no substantial evidence to support the
conclusion of the trial judge that a violation of the conditions of probation has occurred.”
Harkins, 811 S.W.2d at 82. If the trial judge finds by a preponderance of the evidence that
a probation violation has occurred, the court may revoke the defendant’s probation. Tenn.
Code Ann. § 40-35-311(e) (1997).
In the case sub judice, the defendant admitted that while on probation he was
convicted of additional criminal offenses, he failed to report to his probation officer, and he
failed to pay supervision and court costs. Further, he absconded and failed to appear for
his revocation of probation hearing which was not held until eight months later, following
his rearrest. Therefore, the trial court did not abuse its discretion by revoking the
defendant’s probation.
For the foregoing reasons, we affirm the decision of the trial court.
_____________________________________
ALAN E. GLENN, JUDGE
CONCUR:
____________________________________
JOSEPH M. TIPTON, JUDGE
____________________________________
JOHN EVERETT WILLIAMS, JUDGE
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