1 The docke t numbers use d herein are a s they appea r on the trial court’s indictments.



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs M ay 14, 2002
STATE OF TENN ESSEE v. JESS R. A MONETTE
Appeal from the Circuit Court for Williamson County Nos. II-11-100 & II-100-10 Timothy Easter, Judge

No. M2001-02952-CCA-R3-CD - F iled August 29, 2002

Jess R. Amonette appeals from the Williamson County Circuit Court’s revocation of h i s probationary

sentence. He claims that the lower court exceeded its discre tion in revoking probation and orderin g him to se

rve his sentenc e in conf

inement. In c ase numbe

r II -100-10, we notice

as a matter of plain e

rror tha t the sente

nce expir ed prior to initiatio n of revo catio n proc eedi ngs. We thereforerevers e the revocation order a nd dismiss r

evocati on proceedings in that cas e. I n case number II -11-100, the rec ord does not refle ct th e lo wer court’s findings from which we c an determine the basis for its ruling, and we theref ore remand for further considera tion. Tenn. R. App.P. 3; Judg ment of t he Circui t Court R

eversed and Rem anded.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J OE G. R ILEY , JJ., joined. Erik R. Herbert, Nashville, Tennessee, for the Appe llant, Jess R. Amonette.

Paul G. Summers, Attorney Gene ral & Reporter; Renee W. Tur ne r, Assista

nt Attorne

y General ; Ronald L. Davis, District Attorn ey General; and Mark K. Harvey , Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

In case number I

I-100- 10, the defendant pleaded guilty to second-offense driving under the influe nce, thr ee coun ts of simple

possession of

drugs, and one count of possession of drug paraphernalia. For each

of these offenses, he received a sentence of eleven

months and twenty-nine d ay s, 60 days of which w as to be served in confinement. The sentences we re to be serve d
co nc ur re nt ly. In case number I I-11-100, 1 the defe

ndant ple aded guilty

to one cou

nt of simple possession of drugs and one count of possession of drug paraphernalia. For the drug offense, he was sentenced to eleven months andtwenty-nine day s, 60 day s of which

was to be served in confine

ment.2 It appears from the somewhat anomalous wording of the judgment i n case II -11-100 tha t th e defendant was to serve a total of 60 days confinem ent for both senten ces. -2- For the paraphernalia offense, he was sentenced to serve eleven months and 29 day s on probation. These sentences were imposed concurrently to each other but consecutively to the sentences in case number II -100-10. Thus, the defendant’s effective sentenc e was just shy of two y ears, w ith the fir st 60 day s being s erved in

confine ment. 2

The defend ant came

before the cour t to face allega tions of pr

obation vi olations i n bothcases after

two drug screen s revea

led the pr esence of narc otics in hisbody. Amonette admitted the violation; thus, the o nly issue before the court was the effect of the violation on the probationary sentences originally

imposed. The evidence presented was asfollows. The def endant, b y a

ll accou nts, far ed well
on probation from the time of his sentencing on February 28, 2000, until he failed a drug screen more than one yea

r later on May

23, 2001. According to the defendant’s testimony , he ha d completed drug rehabilitation treatment during the earlier portion of his probationary sente

nce but later relapsed
w hen he was no l onger attending follow-up car e. He claimed that he voluntarily submitted to an evaluation after the positive screen. He was un able to afford the 30-day

inpatient treatment program recommended

for him, so he attended some Narcotics Anony mous and C ocaine A nonymous meeti ngs o n h is own. Nevertheless, he had a second positive drug screen on July 18, 2001. He testified that he wa s n ot able to l eave his family business f or inpatient treatment because a key employee ha d a st ro ke in Ju ly 2 00 1. Ad di ti on al ly, the defendant’s grandfather had undergone heart byp ass surger

y th e previous fall and was unable to work in the business as much as he ha d in the past. The def

endant c laimed to h ave cha nged the frien ds with who m he assoc iated aspart of h is effort to remain off drugs, but he had been at a party when some one unexpectedly had drugs. He was enticedto use dru gs and th ereaf ter beg an using

about fou

r to five g rams of co caine a month. He acknowledged

that he had not gone to his probation officer or his g randfather for

assistance with his drug problem. He claimed that he was too ashamed of his relapse to seek his gr andfather’s assistance.

The defendant’s grandfather testified that the defendant was a valued employ ee of the family business, which the

grand father owned. H e chara

cteriz ed the pr ospect of the defendant’s absence as “devastating” for the business. The defendant’s grandfa ther hadnot realized earlier that his g r andson had a drug problem, but he offer ed to pay for

treatment if the court would allow the defendant another chance.

The defendant’s probation officer testified

that the defendant had done all that was expected of him save passing the drug scree ns. She stated that she believe d the def endant’ s sincer

ity about addressing his drug problem, and she advocated that the defendant be offered a second chance. Upon receiving the evidence, the c ourt noted the difficulty it fac es in d ealing with drug-addicted

individuals. The court no ted fu rther that two individuals who were present in the-3-

courtroom

that day would be

the subje ct of sen

tencing hearing s later, a

nd these individual s had drug addictions. The court co mmented th at if it exte nded leni ency

to Amonett

e for vio lating th

e terms of his proba tion by using dr ugs, these other two individuals might not be deterred from further drug
use during a

ny p robation ary

perio d tha t might be imposed as part of their sentences. The cour t further commente d that Amonette had given h is wordto the court at sentencing that he would abide by the terms of probation, and he had been warned that a violation would result in revocation. The court did n ot, h owever , make any factua l find ings based upon the evidence presented. For example, the court did not make any de terminations relative to witness credibility. The cou rt or dered the probationary

sentences in both cases revoked; thus, the defendant was required to serve his sentences in the cou nty jail.

I

Althou gh the issue has not been raised in this appeal, we note that the defe ndant’s sentence in case I

I-10 0-10 expir

ed prior to initiation of revocation proceedings. The sentence w as imposed on February

28, 2000, and the revocation warrant was filed on June 18, 2001. The ef fective sentence in case II-100-10 was for eleven months and 29 days, which time expired prior to June 18, 2001. Thus, the lower court erred in allowing the state to pursue revocation in that case. See Tenn. Code Ann. § 40-35-310 (1997) (trial court may revoke suspension of sentence “at any time within the maximum time which was directed and ordered b y the court f or such su spension” ); State v. Schafer , 45 S.W.3d 553 , 555 (Te nn. 2001) (trial c ourt ge

nerally mu st revoke probatio n within probationary

period, a lthough i ssuance

of revoc ation war

rant with in probat ionary perio d will toll passa ge of time wit

hin which court must act); State v. La rry Ammons , No. W2001-00834-CCA-R3- CD, slip op. at 5 (Tenn. Crim. App., Jackson, Mar. 18, 2002) (lower court errone ously revoked probation in case in which sent ence had e xpired; case remanded for corrected order revoking probation only

in unexpire d case) ; State v. Randall Anthony , No. W2000-022 34-CCA-R3 -CD, slip op. at 3 (T enn. Crim. App., Jackson, July 6, 2001) (probation erroneously revoked in first of tw o consecutive sentences because de fendant had completed service of first sentenc e prior to issuance of revocation warrant).

At the revoca

tion hear ing, the court inq uired whether the sentence in case II-100-10 had expired. The state contended that it had not, and the defense esse ntially concede d that it had not. The state indicated that the judgment forms might have bee n erroneously pr

epared, and

that if the court believe d it

was without revoc ation aut hority in case II -100-10, then the judgment forms might be th e proper sub

ject of amendment for clerical err or. However, no such correction was ma de. Furthermore, all of the

defendant’s convictions are for Class A misdemeanor crimes, the sentenc e for which generally

is not greater than eleven months and 29 day s. See Tenn. Code Ann. § 40-35- 111(e)(1) (1997). Thus, unless there was an error in recording the correct

crimes which formed the basis of the defendant’s conviction, the defendant was not eligible for a sentence long er than eleven months and 29 days in case I I-100-10.

Ac co rd in gl y, we revers e the l ower court’s order revoking pr obation in case II-100-10.3 Thu s, we di st in gui sh t hi s ca se f rom State v. Jerry O. Su mm ers , M 200 1-01 358 -CC A-R 3-CD (Te nn. Cr im. Ap p., Nashvil le, July 19, 2002), in which the court deni ed th e def

endant ’s reques t f

or f urther pr obati on fol lowi ng re vocat ion based upon both “the conclusion that all others i n th e court wi ll l ose respect for t he probati on program” and the individual f

acts of that

case, incl uding the defendant’s repeated failures at past rehabil itati on. -4- II

We now advance to the issue of the propriety of revocation in case I

I-11-100. The standardof review upon appeal of an order revoking probation is the abuse of discretion standard. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). For an abuse of discretion to occur, the r eviewing court must find that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the terms of probation has occurred. Id . at 82; State v. Delp , 614 S.W.2d 395, 398 (Ten

n. Crim. Ap

p. 1980). The tria

l court is r

equired only to find tha

t th e vio lation of probat io n occurred by

a preponderance of the evidenc e. Tenn. Code Ann. § 40-35-311(e) (Supp. 2001). Up on fi nd in g a vi ol at io n, th e t ri al co ur t i s v es te d w it h t he st at ut or y authori ty to "revoke probation and suspension of sentence and cause the def en dant to co mmence the execution of the judgment as originall y entered." Id. Furthermore, when probation is rev oked, "the original judgment
so rendered by

the trial judge shall be in full force and effect from the date of the revocation of such suspension." Id. § 40-35 -310 ( 1997) . The t rial j udge retains the discretionary authority to order the defendant (1) to serve his sentence in incarcer ation; (2) to serve the probationary term, beginning anew; or (3) to serve a

probationary pe

riod that is extended for up to an additional two yea rs. State
v. Hunter , 1 S.W.3d 643 (Tenn. 1999). The decision of the proper consequence embodies a separ

ate exercise of discretion from the initial finding that a violation has occurred. See id. at 647; State v. Ricio L. Conner , No. 02C01-9807-CR-00201 (Tenn. Crim. App., Jackson, O ct. 31, 19 99); State v. Duke , 902 S.W.2d 424, 427 (Tenn. 1995).

By pleading guilty

to the alleg ations of the violati on warrants, the defendant conceded that there wa s an adeq

uate bas is for a f

inding th at he had

violated the termsof

probation. See State
v. Michael Emler , No. 01C01-9512-CC-00424, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 27, 1996) (wherethe defendant admits violation of the terms of probation, revocation by the trial court is not arbitra

ry or capr icious); State v. Mitzi Ann Boyd , No. 03C01 -9508-CC- 00246 (Te nn. Crim. App., Knoxville, Nov. 1, 1996 ). Thus, the only question we must answer is whether the court abused its discre tion in ord

ering t he defe ndant to se

rve the r emainde r of his se ntence in the coun

ty ja il.

In that r ega rd , the record reflects that the lower c ourt was concerned with the need to deter other defendants who might rec eive probation. The record does not reflect, howeve r , whether the court considered any

facts relative to the defendant Amonette’s ca se, such as the court’s perceptionof the defendant’s amenability to rehabilitation, sincerity, and the like. Without any such findi ngs in the record, weare unable to know whether the court’s decision was a c onscientious and intelligent

one based upon the facts of the case. 3 Cf. State v. John Earl Turner , E2001-01373-CCAR3-CD (Tenn. Crim. App., Knoxville, July 12, 2002) (record must reflect court’s findings relative t o pr ob at io n r ev oc at io n) . T hi s i s p ar ti cu la rl y th e c as e w he re , a s h er e, th e t es ti mo ny i s essentia ll y4 De spite the use o f a video reco rd in this c ase, we declin e to use the video as a means of substituti ng our

impr ession s of cre dibility for th ose fo rmed by the trial c ourt. -5- undisputed, and the only question for the c ourt is the credibility and sincerity of the

witnesses who offered that testimony

to the court.

This case is one in whi ch the ev idence i n the appe llate re cord pre sents at le ast a bas is for extending

someleniency to a possibly penitent defendant with a supportive family and probation officer. However, this court, unlike the lower court, was unable to conduct a first-hand assessment of the defe ndant, hisgrand

father , and his probatio n office r at the time of the

ir te st im on y. 4 As such, the lower court is th

e proper entity to make a

ppropria te factu al finding s rega

rding th e believ ability and reliability of the witnesses’ te stimony, and ultimately , to rule upon the defendant’s bid for further probation.

Ac co rd in gl y, we reve rsethe lower court’s order revoking the defenda nt’s probation in case II-11-100 and remand with instructions that the court ma ke the ap propria te factua l find ings and enter a

n order in accor

dance w ith those

findings. Additionally, for the reasonsstated a

bove in section I, we reve

rse the lower court’s order revoking the defendant’s probation in II -100-10.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE