James Judd v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1998 SESSION
February 12, 1999
Cecil W. Crowson
Appellate Court Clerk
JAMES JUDD, )
) C.C.A. NO. 01C01-9805-CR-00204
Appellant, )
) DAVIDSON COUNTY
VS. )
) HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)
FOR THE APPELLANT: FOR THE APPELLEE:
DALE QUILLEN JOHN KNOX WALKUP
95 White Bridge Rd. Attorney General & Reporter
Nashville, TN 37205
DARYL J. BRAND
Asst. Attorney General
Cordell Hull Bldg., 2nd Fl.
425 Fifth Ave., North
Nashville, TN 37243-0493
VICTOR S. JOHNSON, III
District Attorney General
CARRIE DAUGHTREY
-and-
KATRIN MILLER
Asst. District Attorneys General
Washington Square, Suite 500
222 Second Ave., South
Nashville, TN 37201
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner pled guilty to assault for which he received an eleven month,
twenty-nine day suspended sentence. The petitioner’s probation was subsequently
revoked for failure to comply with the terms of his probation. The petitioner appealed the
probation revocation and filed a post-conviction petition while the appeal was pending in
the Davidson County Criminal Court. The appeal and the post-conviction petition were
heard together in the Davidson County Criminal Court, where the petitioner’s probation
revocation was affirmed, and his petition for post-conviction relief was denied. The
petitioner now appeals. After a review of the record and applicable law, we affirm the
judgment of the lower court.
It is undisputed that the petitioner pled guilty to assault. However, the
general sessions judge, Judge Robinson, testified that when the petitioner pled guilty, he
believed the petitioner was pleading guilty to Class A misdemeanor assault. He
sentenced the petitioner to a suspended eleven month, twenty-nine day term in reliance
on this belief.
The petitioner contends that the affidavit with which he was charged only
alleges a Class B misdemeanor and therefore any sentence over six months would be
void. T.C.A. § 40-35-111(e)(2). However, the affidavit at issue alleges, in the alternative,
two Class A misdemeanors and one Class B misdemeanor with facts that would support
a conviction on any of the three charges.1 Therefore, the petitioner could have pled guilty
1
We note that pleadings in a general sessions court are not held to the same standard of
strictness and pre cision as is required of pleadin gs in a co urt of reco rd. Stevens v. Moore , 139 S.W.2d
710, 712 (Tenn. Ct. App. 194 0).
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to either a Class A or Class B misdemeanor.2 As such, the petitioner has not proven his
conviction to be void or voidable. Therefore, this contention is without merit.3
The petitioner next contends that the fiat ordering him to show cause why
his probation should not be revoked is illegal and renders the revocation of his probation
void. However, the petitioner does not deny that he violated his probation.
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). 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 conditions of probation has occurred.”
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
In the petitioner’s case, the general sessions court found enough evidence
to support a revocation of probation. However, the petitioner challenges the general
sessions court’s use of a fiat ordering the petitioner to show cause why his probation
should not be revoked. The petitioner contends that this fiat illegally shifted the burden
of proof to the petitioner rather than the State. However, Judge Robinson testified that
2
Although the petitioner alleges that Judge Robinson testified that the affidavit charged a mere
Class B misdemeanor, Judge Robinson further testified that the affidavit also alleged two Class A
misd eme anors.
3
The petitioner further contends that the affidavit fails to give adequate notice of the charges
and there fore violate s the “law o f the la nd” p rovis ion of our s tate c ons titution . How ever , as th e aff idavit
clearly sets fo rth the cha rges ag ainst him , this conten tion is also w ithout m erit.
3
when a defendant wants a hearing to decide whether or not his probation should be
revoked, he will have a hearing and take sworn testimony from the probation officer and
sworn testimony from the defense. In the petitioner’s case, Judge Robinson found, after
hearing the evidence, that the petitioner had violated his probation. As the petitioner has
failed to show that this conclusion is not supported by substantial evidence in the record,
there was no abuse of discretion. As such, this contention is without merit.
Accordingly, we affirm the petitioner’s sentence and probation revocation.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
NORMA McGEE OGLE, Judge
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