State v. James Dantes ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
OCTOBER 1997 SESSION December 15, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE,
) C.C.A. No. 02C01-9705-CC-00184
Appellee, )
) Hardeman County
V. )
) Honorable Jon Kerry Blackwood, Judge
)
JAMES DANTES, )
) (Revocation of Community Corrections)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
Clifford K. McGown, Jr. John Knox Walkup
Attorney at Law Attorney General & Reporter
113 North Court Square
P.O. Box 26 Kenneth W. Rucker
Waverly, TN 37185 Assistant Attorney General
(On Appeal Only) Criminal Justice Division
425 5th Avenue North
Gary F. Antrican Nashville, TN 37243-0493
District Public Defender
Elizabeth T. Rice
Jeannie Kaess District Attorney General
Assistant District Public Defender
118 East Market Street Jerry Norwood
P.O. Box 700 Assistant District Attorney General
Somerville, TN 38068 302 Market Street
(At Trial) Somerville, TN 38068
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, James Dantes, pled guilty to two counts of violating the
Motor Vehicle Habitual Offenders Act. He received an effective sentence of six
years incarceration as a multiple offender. Before the appellant reported to jail,
he again violated the Motor Vehicle Habitual Offenders Act. He was sentenced
to one year and eight months incarceration, which was to be served
consecutively to his previous sentences. Therefore, he received a total effective
sentence of seven years and eight months.
Thereafter, the appellant signed a behavioral contract agreement and
entered into the community corrections program. However, the appellant
violated the conditions of this agreement. As a result of this violation, the trial
court revoked the appellant’s community corrections sentence and resentenced
him to an effective sentence of nine years. He appeals the revocation of his
community corrections sentence and the increase of his original sentence. Upon
review, we affirm.
The appellant contends that the revocation of his community corrections
sentence should be set aside because the trial court failed to specify the precise
condition or term of the agreement that was violated. For this Court to overturn a
community corrections revocation, we must find that the trial judge abused his or
her discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of
discretion is apparent when the record contains no substantial evidence to
support the conclusion that a violation of the community corrections sentence
has occurred. Id. In this case, however, we find that the record is replete with
evidence to support the revocation.
The appellant’s behavioral contract agreement required him to make
payments for costs or fines, complete 100 hours of community service, and
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abide by all rules and regulations of the program. The record reveals that the
appellant failed to make the required payments for court costs or fines.
Appellant repeatedly failed to attend his weekly scheduled meetings; and he was
observed by his case worker in an intoxicated state. The record contains
substantial evidence to support the trial court’s determination that the appellant
violated the conditions of his community corrections sentence. This issue is
without merit.
The appellant next contends that the trial court erred in increasing his
original sentence from seven years and eight months to an effective sentence of
nine years. The state argues that once a community corrections sentence has
been revoked, the trial court can conduct a sentencing hearing and sentence the
appellant to a sentence that exceeds the length of the initial sentence.
Tennessee Code Annotated § 40-36-106(e)(3) (Supp. 1996) grants a trial
judge the authority to resentence an appellant in excess of his or her original
sentence. When a trial court utilizes this procedure, a sentencing hearing should
be conducted. State v. Ervin, 939 S.W.2d 581 (Tenn. Crim. App. 1996).
The record reveals that the trial court considered the testimony at the
revocation hearing, the previous sentencing hearing, the presentence report, and
the entire record. The court found that new evidence of enhancement1 existed
and found no additional mitigation evidence. Therefore, finding that
the enhancement factors outweighed the only evidence of mitigation,2 the court
increased the appellant’s effective sentence by one year and four months.
1
The court found that the appellant had shown an unwillingness to comply with the conditions
of a sentence involving release into the community. Tenn. Code Ann. § 40-35-114(8) (1990).
2
The trial court’s written order states that no mitigation evidence exists. However, the
transcript reveals that the trial court considered the fact that the appellant’s conduct neither caused
nor threatened se rious bodily injury.
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We find that the increase in the appellant’s sentence was warranted. The
appellant has failed to overcome the presumption of correctness. This issue is
without merit.
Accordingly, we find no error of law mandating reversal. The judgment of
the trial court is affirmed.
__________________________
PAUL G. SUMMERS, Judge
CONCUR:
__________________________
JOHN H. Peay, Judge
__________________________
DAVID G. HAYES, Judge
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