State of Tennessee v. Richard Lynn Dixon ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 18, 2007
STATE OF TENNESSEE v. RICHARD LYNN DIXON
Direct Appeal from the Circuit Court for Blount County
No. C-12881 Jon Kerry Blackwood, Judge
No. E2007-00765-CCA-R3-CD - Filed May 20, 2008
Defendant, Richard Lynn Dixon, appeals the revocation of his probation by the trial court. On
appeal, Defendant asserts that the trial court abused its discretion in revoking Defendant's probation.
After a thorough review of the record, the judgment of the trial court is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
and J. C. MCLIN , JJ., joined.
Mack Garner, District Public Defender, Maryville, Tennessee, at trial; and J. Liddell Kirk, Knoxville,
Tennessee, on appeal, for the appellant, Richard Lynn Dixon.
Robert J. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Mike Flynn, District Attorney General; Robert Headrick, Assistant District Attorney
General, for the appellee, the State of Tennessee.
OPINION
Defendant was convicted of theft, a Class D felony, on November 7, 2001. On November
19, 2001, he was sentenced to three years, to be suspended after serving sixty days in the county jail,
followed by three years of supervised probation and two years of unsupervised probation. On
August 11, 2004, the first violation of probation was filed against Defendant because he had an order
of protection filed against him, failed to report it to his probation officer, and he failed to perform
community service. On March 15, 2005, the trial court ordered Defendant to serve one weekend
each month in jail until his community service hours were completed. On August 12, 2005, the
instant probation violation was filed against Defendant alleging that he failed to report to his
probation officer, failed to serve his jail sentence, failed to pay his court costs, and failed to complete
his community service hours. Following a probation revocation hearing, Defendant’s probation was
revoked and he was ordered to serve his sentence.
I. Background
Defendant’s probation officer, Carolyn Brewer, testified at the probation revocation hearing.
Ms. Brewer testified that Defendant had violated his probation twice in 2004 by having an order of
protection filed against him and by failing to perform community service and pay probation fees.
After these violations, Defendant was sentenced to serve one weekend a month until he completed
his community service requirements. Ms. Brewer testified that this order was issued on March 15,
2005. Ms. Brewer stated that the last time Defendant reported to the probation office was on June
30, 2005. In July 2005, Defendant was scheduled to report, but rescheduled twice due to car trouble.
July 20, 2005 was Defendant’s last scheduled appointment and he did not show up. On August 10,
2005, after reviewing Defendant’s file and realizing he had not completed any community service
hours, Ms. Brewer contacted Defendant’s employer and learned that he was no longer employed
there. On August 12, 2005, Ms. Brewer filed the instant probation violation. On March 23, 2007,
Defendant was arrested for simple possession of marijuana and he was served with the warrant for
his arrest for the violation of probation. Ms. Brewer recommended that Defendant’s probation be
revoked.
Defendant testified at the hearing that he understood the March 15, 2005 order to mean that
he was to serve weekends in order to complete his community service requirements and after serving
five weekends he believed he had completed his probation and community service hours. Prior to
his arrest, Defendant was living with his father and working as a welder. Defendant stated that, if
given the chance, he could complete the community service and pay what he owed in court costs
within a month. On cross-examination, Defendant stated that because no one had contacted him in
two years and he had not been arrested, he believed his probation was complete. Defendant also
admitted that it was his responsibility to understand and to complete his probation.
II. Analysis
Defendant claims the trial court erred in revoking his probation. Tennessee Code Annotated
section 40-35-310 vests the trial court with the power to revoke a defendant’s probation. The trial
court must find by a preponderance of the evidence that the defendant has violated probation in order
to revoke it. See T.C.A. § 40-35-311(e) (2006). When challenged on appeal, the standard for review
is abuse of discretion by the trial court. See State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim.
App. 1997). Our Supreme Court has held that this means that “if the record presents substantial
evidence to support revocation, the trial court's action will be approved.” State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991).
In the instant case, there is ample evidence that Defendant violated the terms of his probation.
On three separate occasions Defendant failed to adhere to the requirements of his probation.
Defendant also admitted to violating the terms of his probation and that it was his responsibility to
understand and follow the conditions. Accordingly, there was substantial evidence to revoke
probation and the trial court was justified in revoking Defendant’s probation.
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CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed.
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THOMAS T. WOODALL, JUDGE
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