State v. Haynes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1997 SESSION
March 23, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
)
Appellee, ) No. 03C01-9602-CC-00075
)
) Sullivan County
v. )
) Honorable R. Jerry Beck, Judge
)
DAVID GLEN HAYNES, ) (Sentencing)
)
Appellant. )
For the Appellant: For the Appellee:
Stephen M. Wallace Charles W. Burson
District Public Defender Attorney General of Tennessee
and and
Gale K. Flanary Janis L. Turner
Assistant District Public Defender Counsel for the State
P.O. Box 839 450 James Robertson Parkway
Blountville, TN 37617 Nashville, TN 37243-0493
H. Greeley Wells, Jr.
District Attorney General
and
Phyllis H. Miller
Assistant District Attorney General
P.O. Box 526
Blountville, TN 37617
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The defendant, David Glen Haynes, appeals as of right from an order of
the Sullivan County Criminal Court reversing its earlier grant of intensive probation. On
July 13, 1995, the defendant was convicted of aggravated burglary and aggravated
assault, Class C felonies, in the Sullivan County Criminal Court upon his entry of guilty
pleas.1 The defendant was sentenced as a Range I, standard offender to concurrent
sentences of five years. The trial court ordered that the defendant serve his sentences
consecutively to the sentences imposed in an unrelated case.2 The trial court initially
granted intensive probation, but it reconsidered and reversed its decision after granting
the state’s petition for a rehearing based upon the defendant’s commission of an
assault upon his girlfriend that was not revealed at the sentencing hearing. 3 The
defendant contends that the trial court erroneously granted the state’s petition to rehear
and erroneously denied probation. We affirm the judgment of the trial court.
Initially, we note that the briefs submitted by both parties in this case are
lacking relative to the central issue in this appeal. See T.R.A.P. 27(a)(7), (b) and (h);
Tenn. Ct. Crim. App. R. 10. The defendant’s brief raises the issue whether the trial
court erred by granting the state’s petition to rehear and by denying probation. In the
argument portion of his brief, the defendant essentially summarizes the facts and then
states that “the court erred in reconsidering the matter, had correctly granted intensive
probation earlier, and erred in reversing its decision . . . .” The only authority cited by
the defendant relates to the appropriateness of denying alternative sentencing. The
defendant cites no authority in support of his argument that the trial court erred by
1
The trans cript o f the g uilty plea hear ing is n ot co ntain ed in th e rec ord o n app eal.
2
On July 13, 1995, the defendant also entered guilty pleas to the charges of rape, a Class
B felony, and incest, a Class C felony, involving the defendant’s daughter. The defendant received
concurrent, Range I sentences of eight years and three years, respectively. Upon recommendation by the
state, the trial c ourt gran ted intens ive proba tion.
3
App aren tly, no o ne at the s ente ncin g hea ring b ut the defe nda nt wa s aw are o f the a ssa ult
charge.
2
granting the state’s petition to rehear and reconsidering its decision to grant intensive
probation. Nor does the state respond to the issue about whether the trial court could
grant the petition to rehear and modify the manner of service of the sentence imposed
to a harsher manner. Rather, the state viewed the issue as one relating only to whether
the trial court appropriately denied alternative sentencing. Although it does note that
this court has affirmed a probation revocation for the commission of an offense
committed after the entry of judgment, but before the probationary term begins, see
State v. Stone, 880 S.W.2d 746, 748 (Tenn. Crim. App. 1994), it does not explain how
the Stone circumstances relate to the present case.
We hold that the defendant has waived any claims regarding the
procedural correctness of the trial court’s actions. The argument portion of an
appealing party’s brief must set forth the contentions with respect to the issues
presented on appeal with citations to the authorities. T.R.A.P. 27(a)(7) and (h).
Pursuant to Rule 10(b), Tenn. Ct. Crim. App. R., issues that are not supported by
argument or citation to authorities will be treated as waived by this court. Given the
shortcomings of the defendant in preparing his brief, the issues presented by the
defendant must be treated as waived.
In any event, we note that the trial court afforded the defendant the
procedural protections provided under T.C.A. § 40-35-311 for probation revocations.
Moreover, evidence presented at the hearing on the state’s petition to rehear
established by a preponderance of the evidence that the defendant violated the law,
conduct unknown to the trial court at the sentencing. Under similar circumstances, this
court has approved a probation revocation even though the offense was committed
before the original sentencing. See State v. Stubblefield, 953 S.W.2d 223, 223-25
(Tenn. Crim. App. 1997).
3
Therefore, we see nothing in the record that would warrant us concluding
that the order of confinement was illegal or unauthorized. In consideration of the
foregoing and the record as a whole, the judgment of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Gary R. Wade, Judge
William M. Barker, Judge
4