IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 7, 2001

STATE OF TENNESSEE v. PRESTON FISHER

Direct Appeal from the Circuit Court for Chester County

Nos. 99-023 and 98-023 Franklin Murchison and Roger A. Page, Judges 

No. W2000-00906-CCA-R3-CD - Filed April 9, 2001

The defendant, Preston Fisher, was convicted of theft of property over $10,000.00. The trial court

imposed a Range I, five-year sentence and required service of 120 days in jail, after which the

defendant was to be placed upon intensive probation. Following a probation violation by his use of

marijuana, the defendant was placed in a Community Corrections program which required one year

of drug and alcohol treatment at the Synergy Foundation followed by four years of supervision.

After the defendant failed to pursue treatment at Synergy, the trial court ordered that he serve his

sentence in the Department of Correction. In this appeal of right, the defendant contends that the

trial court erred by the revocation of the Community Corrections sentence. The judgment is

affirmed.

Tenn R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA

MCGEE OGLE, JJ., joined.

Vanessa D. King, Assistant Public Defender, Jackson, Tennessee, for the appellant, Preston Fisher.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; and

Shaun A. Brown, Assistant District Attorney, for the appellee, State of Tennessee. 

OPINION

On July 13, 1998, the defendant entered a guilty plea to one count of theft of property over

$10,000.00. The trial court granted probation, which was later changed to Community Corrections

supervision. On October 26, 1999, the defendant was charged with failure to complete drug

treatment as required by the terms of his Community Corrections sentence. The trial judge entered

an order of revocation and directed the defendant into the custody of the Department of Correction.
1

Judge Murchison entered the original order revoking the Community Corrections sentence on December 8,

1999. Ju dge Pag e, by interc hange , denied th e motio n to recon sider on M arch 28 , 2000. 

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Shortly thereafter, the defendant filed a motion to reconsider based upon evidence that the

director of the Synergy Foundation program had excused the defendant from participation. The trial

court concluded that revocation was proper because the defendant failed to explain the requirement

of his alternative sentence to the director of the program and because the defendant's decision to

terminate his participation was unilateral.1

 

The purpose of the Community Corrections Act of 1985 was to provide an alternative means

of punishment for "selected, nonviolent felony offenders in front-end community based alternatives

to incarceration." Tenn. Code Ann. § 40-36-103. The Community Corrections sentence provides

a desired degree of flexibility that may be both beneficial to the defendant and serve legitimate

societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That the defendant meets the

minimum requirements of the Community Corrections Act of 1985, however, does not mean that

he or she is entitled to be sentenced under the Act as a matter of law or right. See State v. Taylor,

744 S.W.2d 919 (Tenn. Crim. App. 1987). The following offenders are eligible for Community

Corrections:

(1) Persons who, without this option, would be incarcerated in a correctional

institution;

(2) Persons who are convicted of property-related, or drug/alcohol-related

felony offenses or other felony offenses not involving crimes against the person as

provided in title 39, chapter 13, parts 1-5;

(3) Persons who are convicted of nonviolent felony offenses;

(4) Persons who are convicted of felony offenses in which the use or

possession of a weapon was not involved;

(5) Persons who do not demonstrate a present or past pattern of behavior

indicating violence; and 

(6) Persons who do not demonstrate a pattern of committing violent offenses.

Persons who are sentenced to incarceration or on escape at the time of consideration

will not be eligible. 

Tenn. Code Ann. § 40-36-106(a). 
2

The state argues that the issue had been waived for the failure to include the transcript of the original probation

revocatio n proce eding. W e disagree . 

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Once a defendant violates the terms of his Community Corrections program, the trial court

may revoke the sentence and impose a new one:

The court shall also possess the power to revoke the sentence imposed at any time

due to the conduct of the defendant or the termination or modification of the program

to which the defendant has been sentenced, and the court may resentence the

defendant to any appropriate sentencing alternative, including incarceration, for any

period of time up to the maximum sentence provided for the offense committed, less

any time actually served in any community-based alternative to incarceration.

Tenn. Code Ann. § 40-36-106(e)(4).

The authority to revoke a Community Corrections sentence is based upon the conduct of the

defendant while under supervision. Tenn. Code Ann. § 40-36-106(e)(3). A trial judge's decision

to revoke a defendant's release on Community Corrections should not be disturbed unless there is

an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order to find an abuse

of discretion, it must appear that the record contains "no substantial evidence to support the

conclusion of the trial judge that a violation of the conditions . . . occurred." Id.

The same principles applicable to a probation revocation are relevant to the revocation of

Community Corrections. Id. at 83. The trial judge is not required to find that a violation of the

terms of probation has occurred beyond a reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73

(Tenn. Crim. App. 1980). Rather, the existence of a violation of probation need only be supported

by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(e). 

Here, the record consists of the transcripts of the Community Corrections revocation

proceedings and the hearing on the motion to reconsider.2

 In the first proceeding, Amanda Wood,

an officer with the Community Corrections program, testified that she had transported the defendant

to the Synergy Foundation on September 1, 1999, and that he had returned to her office two days

later. Ms. Woods stated that upon his return, she explained the requirements of the order and then

administered a drug screen. The defendant acknowledged at that time that he had been using

marijuana. The revocation proceeding took place some two and one-half months later. At that time,

Judge Murchison revoked the defendant's Community Corrections sentence and ordered the

defendant to the Department of Correction. 

In his motion to reconsider, the defendant filed an affidavit claiming that the counselor at the

Synergy Foundation told him that he did not require long-term treatment and that he could leave.

The affidavit further provides as follows:
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I had asked Mr. Connelly if he could give me a statement to give to my probation

officer. He said that if I needed him to be here to go to Court that he would come.

At the hearing on the motion to reconsider, the defendant testified that he had the following

conversation with Mr. Connelly before leaving the facility:

THE DEFENDANT: Well, I feel like I'm wasting my time and your time by being

here because this place is for a year. It should . . . be used for

somebody who got a serious drug addiction problem like

crack or heroin or whatever. 

MR. CONNELLY: [I]f . . . [you want] to leave, you [can] pack [your] stuff . . .

and sign out, and they'll take [you] to the bus station and

supply [you] with a bus ticket back home. 

The defendant also stated that another reason he left was that he wasn't supposed to be

admitted into the Synergy Foundation in the first place due to his "mental illness problems." The

defendant testified that he should have been sent somewhere "that had a dual diagnosis place for me,

somewhere where I could have got help for my mental problem and . . . my so-called drug addiction

problem at the same time." 

The trial court concluded that the defendant had no authority to leave the long-term drug

treatment program. It concluded that the defendant had, in fact, violated the terms of the Community

Corrections order by refusing to participate in the rehabilitation opportunity. 

There was no abuse of discretion. The record demonstrates that the defendant had previously

violated the terms of an order granting probation. At the probation revocation hearing, he requested

drug treatment. When the court allowed the defendant that opportunity in the Community

Corrections program, he chose not to participate, claiming he had no need for long-term treatment.

In our view, the trial court had no other choice but to impose the Department of Correction sentence.

Accordingly, the judgment is affirmed.

___________________________________ 

GARY R. WADE, PRESIDING JUDGE