Anderson v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION
FILED
April 30, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
TIMOTHY ANDERSON, ) C.C.A. No. 03C01-9606-CC-00245
) GREENE COUNTY
Appellant, )
) Hon. James E. Beckner, Judge
VS. )
) (PROBATION VIOLATION)
STATE OF TENNESSEE, ) Nos. 9694, 9695, 9706 BELOW
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
MICHAEL A. WALCHER JOHN KNOX WALKUP
Office of the Public Defender Attorney General and Reporter
1609 College Park Drive
Box 11 MICHAEL J. FAHEY, II
Morristown, TN 37813-1618 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. BERKELEY BELL, JR.
District Attorney General
109 S. Main Street
Suite 501
Greeneville, TN 37743
JOHN F. DUGGER, JR.
Assistant District Attorney General
Hamblen County Justice Center
510 Allison Street
Morristown, TN 37814
OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK,
Special Judge
OPINION
In this appeal the appellant contends that the trial court abused its discretion
in revoking the defendant’s probation and in requiring incarceration when the
revocation was based on his inability to pay costs. We disagree and therefore
affirm the decision of the lower court.
In May 1990 the appellant entered guilty pleas to three counts of sale of
cocaine, a Schedule II controlled substance. On each count he was sentenced as
a Range I standard offender to five years and was required to pay a $3,000.00 fine.
The sentences were run concurrently to one another.
Pursuant to T.C.A. §40-20-206, on October 22, 1990, defendant was placed
on probation by the Department of Correction for the remainder of his sentence. In
June 1992 a probation violation warrant was issued against appellant, charging him
with having received new charges, using intoxicants to excess, and failing to pay
restitution and fines. By order entered August 27, 1992, appellant’s probation was
revoked. By order entered September 15, 1992, appellant was ordered to serve his
sentence at the John R. Hay House Community Corrections Program following
alcohol and drug treatment at another facility. By order entered March 31, 1993,
defendant’s probation was reinstated with an extended expiration date of April 23,
1995, subject to his obligation to pay restitution, fines, and costs on a monthly
schedule.
On April 11, 1995, a show cause order was issued for appellant’s failure to
pay the restitution ordered in his probation agreement. By order entered April 17,
1995, appellant’s probation was revoked, then reinstated and extended for one
year, with a specific condition that he pay the costs, fines and jail fees at the rate
of $100.00 per month.
2
On September 22, 1995, a probation revocation warrant was issued for
appellant alleging that he failed to pay costs, fines and jail fees according to the
previously-entered order. A probation revocation hearing was held November 15,
1995. Appellant, represented by counsel, appeared at that hearing. He testified
that he had no physical or health problems that prevented his employment. He had
held a number of jobs during the various times he was on probation. Over a
five-year period he had paid only $10.00 into the court. At the conclusion of the
hearing, the court revoked the appellant’s probation and ordered him to serve the
remainder of his sentence in confinement.
The petitioner cites Bearden v. Georgia, 461 U.S. 660, 76 L.Ed.2d 221, 103
S.Ct. 2064, 76 L.Ed.2d 221 (1983) in support of his position that his probation
revocation was unlawful. However, his reasoning is misguided. Under Bearden, a
court may not revoke a defendant’s probation for failing to pay fines and costs until
it has determined the underlying reason for nonpayment. Id. at 672. If the
nonpayment is willful, probation may properly be revoked. Id. However, if the
nonpayment is due to an inability to pay, the court may not imprison the defendant.
Massey v. State, 929 S.W.2d 399, 402 (Tenn. Crim. App. 1996).
It is appellant’s position that his failure to pay restitution, fines and costs was
not a willful one. The record does not support that position. Appellant
acknowledged that he had no physical problems which made it difficult to work. He
had been employed in a number of part-time or full-time positions over the several
years of probation. However, not only had he failed to pay the agreed-upon monthly
amount of restitution during that period, he actually had paid a total of only $10.00
into court.
3
Under the facts and circumstances found in this record, we are in full accord
with the findings of the trial court. The court did not act arbitrarily or abuse its
discretion in revoking the probation of the appellant and requiring him to serve the
remainder of his sentence. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State
v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). The judgment of the
trial court is affirmed.
__________________________________
CORNELIA A. CLARK
SPECIAL JUDGE
CONCUR:
__________________________________
JOHN H. PEAY
JUDGE
__________________________________
PAUL G. SUMMERS
JUDGE
4
IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE
TIMOTHY ANDERSON, ) C.C.A. No. 03C01-9606-CC-00245
) GREENE COUNTY
Appellant, )
) Hon. James E. Beckner, Judge
VS. )
) (PROBATION VIOLATION)
STATE OF TENNESSEE, ) Nos. 9694, 9695, 9706 BELOW
)
Appellee. )
JUDGMENT
Came the appellant, Timothy Anderson, by counsel and also came the
attorney general on behalf of the state, and this case was heard on the record on
appeal from the Criminal Court of Greene County; and upon consideration thereof,
this court is of the opinion that there is no reversible error in the judgment of the trial
court.
Our opinion is hereby incorporated in this judgment as if set out verbatim.
It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of Greene
County for execution of the judgment of that court and for collection of costs
accrued below.
It appears that the appellant is indigent. Costs of this appeal will be paid by
the appellant.
PER CURIAM
John H. Peay, Judge
Paul G. Summers, Judge
Cornelia A. Clark, Special Judge