State of Tennessee v. Michael D. Hawkins ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JUNE SESSION, 1999 July 6, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
STATE OF TENNESSEE, )
) No. 03C01-9808-CC-00309
Appellee )
) BLOUNT COUNTY
vs. )
) Hon. D. Kelly Thomas, Jr., Judge
MICHAEL D. HAWKINS, )
) (Revocation of Probation)
Appellant )
For the Appellant: For the Appellee:
Mack Garner Paul G. Summers
District Public Defender Attorney General and Reporter
Natalee S. Hurley
Asst. District Public Defender
419 High Street
Maryville, TN 37804 Georgia Blythe Felner
Assistant Attorney General
(AT TRIAL) Criminal Justice Division
425 Fifth Avenue North
2d Floor, Cordell Hull Building
Gerald L. Bulley, Jr. Nashville, TN 37243-0493
Contract Appellate Defender
P. O. Box 1708
Knoxville, TN 37901-1708 C. Berkeley Bell, Jr.
District Attorney General
(ON APPEAL)
Edward P. Bailey, Jr.
Asst. District Attorney General
363 Court Street
Maryville, TN 37804
ORDER FILED:
AFFIRMED PURSUANT TO RULE 20, TENN. CT. CRIM. APP. R.
David G. Hayes
Judge
ORDER
The appellant, Michael D. Hawkins, appeals as of right from the trial court’s
revocation of his suspended sentence. Following a hearing, the trial court found
that the appellant had violated conditions of his probation and ordered execution of
the entire sentence as originally entered. On appeal, the appellant contends that
the trial court should have granted intensive probation or an alternative sentence,
specifically Community Corrections.1
Based on our review of the briefs and of the entire record in this cause, we
conclude that this is an appropriate case for affirmance under Rule 20, Tenn. Ct.
Crim. App. R.
In April of 1998, the appellant pled guilty to one count of theft of property, a
Class D felony, and received a split confinement sentence of two years with 60 days
to be served in the county jail followed by one year and ten months supervised
probation.2 After his release from the county jail on May 29, 1998, the appellant
began supervision.
On July 6, 1998, the trial court issued a probation violation warrant alleging
violation of seven conditions of probation. The violations included: new arrests and
convictions; failure to pay court costs, restitution, or probation fees; failure to
maintain employment or report that he quit his job; failure to maintain a steady
residence or abide by his curfew; and failed to report for scheduled appointments
1
W e not e tha t, in the appe llant’s brief, he ar gue s tha t princ iples o f sen tenc ing ap ply with in
a probation revocation hearing. This position is misplaced. The application of sentencing
principles a ppropria te to the ap pellant’s ca se con cluded u pon im position of his sente nce. See
State v. Stevie Q. Taylor, No. 02C01-9504-CC-00108 (Tenn. Crim. App. at Jackson, May 1,
1996).
2
The appellant also pled guilty to leaving the scene of an accident, a Class C
misdemeanor, receiving 30 days in the county jail to be served concurrently with his felony
senten ce.
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with his probation officer. At the revocation hearing, the appellant admitted all
seven violations, except that he had paid $150 toward court costs, offering various
unrepentant explanations for his violations, e.g., “I really didn’t think it mattered” or “I
really didn’t think about it.” The trial court found that,
[t]he proof presented establishes beyond any question that [appellant]
has violated his probation. . . .
[I]t is apparent to me that [appellant] does not take this process
seriously at all. . . .
I think there is virtually no possibility that he could successfully
serve this sentence on probation with his present attitude.
The revocation of probation is committed to the sound discretion of the trial
court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If the trial
court finds by a preponderance of the evidence that a probation violation has
occurred, it has the right to revoke probation and cause the probationer to
commence the execution of judgment as originally entered. Tenn. Code Ann. § 40-
35-310, -311(d) (1997). This court will not find that a trial court has abused its
discretion unless the record contains no substantial evidence to support the trial
court’s conclusion that the probation should be revoked. State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). The evidence at the revocation hearing need only
show that the trial court exercised a conscientious and intelligent judgment in
making the decision to revoke probation. State v. Leach, 914 S.W.2d 104, 106
(Tenn. Crim. App. 1995).
Based on the record before us, it is exceedingly clear that the trial court did
not abuse its discretion in revoking the appellant’s probation and ordering
reinstatement of the original sentence imposed with confinement in the Department
of Correction. Accordingly, this court finds that the judgment of the trial court
should be affirmed pursuant to Rule 20, Tenn. Ct. Crim. App. R.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
_____________________________________
JOHN H. PEAY, Judge
_____________________________________
JOHN EVERETT W ILLIAMS, Judge
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