State v. Roger Vance ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE August 31, 1999
Cecil Crowson, Jr.
JUNE 1999 SESSION Appellate C ourt
Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 03C01-9808-CC-00317
Appellee, )
) BLOUNT COUNTY
VS. )
) HON. D. KELLY THOMAS, JR.,
ROGER DALE VANCE, ) JUDGE
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
419 High St.
Maryville, TN 37804 GEORGIA BLYTHE FELNER
(On Appeal) Asst. Attorney General
Cordell Hull Bldg., 2nd Fl.
GERALD L. GULLEY, JR. 425 Fifth Ave., North
P.O. Box 1708 Nashville, TN 37243-0493
Knoxville, TN 37901-1708
(On Appeal) MIKE FLYNN
District Attorney General
MIKE HICKMAN
250 East Broadway Ave. PHILIP MORTON
Maryville, TN 37804 Asst. District Attorney General
(At Hearing) Blount County Courthouse
363 Court St.
Maryville, TN 37804
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
On March 4, 1998, the defendant was found guilty at a bench trial of two
counts of driving on a suspended license. The defendant received an effective sentence
of eleven months, twenty-nine days. The trial court ordered the defendant to serve thirty
days of that sentence in the county jail and the balance on probation. On August 10,
1998, a probation revocation hearing was held and the defendant was found to have
violated the terms of his probation. The trial court then ordered the defendant to serve
ninety days of his original sentence in jail and the balance on probation. It is from this
order that the defendant now appeals, contending that the trial court erred in revoking his
probation and in ordering him to serve ninety days of his original sentence in the county
jail. We do not agree and, therefore, affirm the judgment of the court below.
When a trial judge finds that a probationer has violated the conditions of his
or her probation, the trial judge has the authority to revoke probation. See T.C.A. § 40-
35-310. In determining whether or not to do so, the trial judge need not find beyond a
reasonable doubt that a violation of the terms of probation has occurred. The existence
of a violation need only be supported by a preponderance of the evidence. T.C.A. § 40-
35-311(d).
In probation revocation hearings, the credibility of the witnesses is for the
determination of the trial judge. Bledsoe v. State, 387 S.W.2d 811, 814 (Tenn. 1965);
State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). On review, the findings of
the trial judge have the weight of a jury verdict. Delp, 614 S.W.2d at 398; Carver v. State,
570 S.W.2d 872, 875 (Tenn. Crim. App. 1978). We will not disturb the judgment of the
trial judge in the absence of an abuse of discretion. For this Court to find an abuse of the
trial court’s discretion, the defendant must demonstrate “that the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the
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conditions of probation has occurred.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
The defendant first contends that substantial evidence does not exist to
support the trial court’s revocation of the defendant’s probation. The record indicates that
the defendant was originally found guilty on two counts of driving on a suspended license
and placed on probation after a term of thirty days in the county jail. He was also
declared a motor vehicle habitual offender and his license remained suspended. While
on probation, the defendant was arrested for driving in violation of the Motor Vehicle
Habitual Offender (MVHO) Act. At the probation revocation hearing, the defendant
admitted that he was driving in violation of the MVHO Act while on probation. The
defendant testified that he and his son were riding in a car while his girlfriend, Lisa
Wisdom, was driving. According to the defendant, he and Ms. Wisdom began to argue.
Ms. Wisdom then drove to a house where her sister was staying and went inside. The
defendant and his son stayed in the car with the keys. After approximately thirty minutes,
the defendant approached the house and realized Ms. Wisdom had left with her sister
in her sister’s car. The defendant testified that it was a hot day and his son was crying,
so he decided to drive to a store located approximately one and one-half miles away in
order to call a relative for a ride home. On the way to the store, the defendant was pulled
over by the police for failure to use a turn signal. The defendant was subsequently
arrested for driving in violation of the MVHO Act. The defendant reported the arrest to
his probation officer and a probation violation report was filed.
The defendant claims that this single probation violation does not sustain
the trial court’s decision to revoke his probation. However, T.C.A. § 40-35-311(d) states
that if the trial court finds the defendant has violated his probation, the trial judge may
revoke probation. There is no requirement that more than one probation violation must
occur before a defendant’s probation may be revoked. See T.C.A. § 40-35-311(d). The
defendant admits he violated his probation. This is substantial evidence of record to
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support the trial court’s revocation order. See State v. Yvonne Burnette, No. 03C01-
9608-CR-00314, Knox County (Tenn. Crim. App. filed July 25, 1997, at Knoxville) (citing
State v. Michael Emler, No. 01C01-9512-CC-00424, Maury County (Tenn. Crim. App.
filed November 27, 1996, at Nashville); State v. Mitzi Ann Boyd, No. 03C01-9508-CC-
00246, Sullivan County (Tenn. Crim. App. filed November 1, 1996, at Knoxville)). As
such, we find the trial court did not abuse its discretion in revoking the defendant’s
probation.
The defendant next contends that the trial court erred in not allowing him
to remain on supervised probation or placing him in a community corrections program in
lieu of a term of incarceration. This Court has held that an accused, already on
probation, is not entitled to a second grant of probation or another form of alternative
punishment. State v. James Moffit, No. 01C01-9010-CC-00252, Williamson County
(Tenn. Crim. App. filed April 4, 1991, at Nashville); see also State v. Jimmie L. Allen, No.
02C01-9509-CR-00286, Shelby County (Tenn. Crim. App. filed April 28, 1997, at
Jackson). This Court has further held that there is “no authority in the Criminal
Sentencing Reform Act of 1989 for the imposition of a community correction sentence
following revocation of probation.” State v. Bruce Cole, No. 02C01-9708-CC-00324,
Gibson County (Tenn. Crim. App. filed June 11, 1998, at Jackson) (citing State v.
Bowling, 958 S.W.2d 362, 364 (Tenn. Crim. App. 1997)). It is also well established that
the trial court has the authority to revoke a defendant’s probation and to impose the
original sentence on the defendant. T.C.A. § 40-35-310, -311. The trial court may also
“impose any penalty less than or equal to that sentence originally imposed upon the
probationer.” State v. Melvin Griffin, No. 01C01-9503-CC-00090, Williamson County
(Tenn. Crim. App., filed November 16, 1995, at Nashville); see also State v. Danny L.
Phillips, No. 01C01-9605-CR-00215, Wilson County (Tenn. Crim. App. filed May 16,
1997, at Nashville). Thus, the trial court had the authority to order the defendant to serve
ninety days of the original eleven month, twenty-nine day sentence in incarceration with
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the balance to be served on probation.
The defendant further contends that the trial court failed to consider
applicable sentencing principles when deciding the issue of confinement. See T.C.A. §
40-35-103. However, this Court has previously held that while the consideration of
sentencing principles is mandatory in determining a criminal defendant’s original
sentence, “reference to these principles is not necessary in determining the appropriate
sanction following revocation of probation.” State v. Howard Luroy Williamson, Jr., No.
02C01-9507-CC-00201, Madison County (Tenn. Crim. App. filed September 30, 1996,
at Jackson); see also State v. Stevie Q. Taylor, No. 02C01-9504-CC-00108, Madison
County (Tenn. Crim. App. filed May 1, 1996, at Jackson). As such, this contention is also
without merit.
The record indicates that the trial court was within its discretion in revoking
the defendant’s probation and ordering him to serve ninety days of his original sentence
in the county jail with the balance on probation. Accordingly, we affirm the judgment of
the court below.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
DAVID G. HAYES, Judge
______________________________
JOHN EVERETT W ILLIAMS, Judge
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