# FILED
June 22, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9707-CC- 0 027 1 ) vs. ) Blount County ) REGINA ANN OWEN, ) Hon. D. Kelly Thomas, Jr., Judge ) Appellant. ) (Probation Revocation)

FOR THE APPE LLANT: FOR THE APPELLEE: MACK GA

RNER (on appeal) JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter NATA LEE S. HURLEY (at hearing) CLI NTO N J. MOR GAN Assistant Dist. Public

Defender Asst. Attorney General 419 High St. 425 Fifth Ave. North Maryville, TN 37804 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493 MICHAEL L. FLYNN District Attorney General EDWARD BA

ILEY Asst. District Attor

ney General 363 Court St. Maryville, TN 37804 OPINION FILED:________________ AFFIRMED A

S MODIFIED CURWOOD WITT, JUDGE1 The defendant's name appears in the recor d as "Regina Ann Owen," "Regina Owen," and "Regina Owens." We use the de fendant's name as it appears in the indictment. OPINION

The defendant, Regina Ann Owen, 1 appeals from the revocation of her probationary sentence. She was conv icted upon he r g uilty plea of attempting to obtain a controlled substance by fraud, a Cl ass D felony. She was sentenced to
serve one year on probation and order ed to pay court costs and pr obation f ees . After the one year had expired and th e defendant had not paid all of her costs , the court signed an agreed order extending probation for an additional year. Thereafter, the defendant's probation officer filed a v iolation report allegi ng the defendant had violated her probation by being conv icted of a misdemeanor, using illegal drugs, bein g in arrears on probation fees, and not making payments on the court costs. Followinga hearing at which the defendant was represented by counsel, the court revoked the defendant's probation ary status and ordered her to serve a minimum of 30 days in the county j ail, after which time she could o btain her freedom by paymentin full of court costs and probation fees and would have fully satisfied her sentence. The defendant appeals from this adverse order, claiming the trial court abused its discretion in (1) revoking her probati onary status and (2) r equiring her to pay the costs and fees in order to obtain release desp ite her indigent status. On review, we affirm the revocation but modify its terms.

The standard of review

upon appeal of an order revoki ng probation is the abuse of discret ion stand ard. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). In order for an abuse of discretion to occur, the revi ewing court must find that the record contains no substantial evidence sufficientto support the conclusion of the trial judge that the vi olation of the termsof probation has occurred. Harkins , 811 S.W.2d at 82 ; Stat e v. Delp , 614 S.W.2d 395, 39 8 (Tenn. Crim. App. 1980). The trial cour t is require d only t o find t hat the vio lation of probatio n occurre d by a3

preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1997). Upon a finding of a violation, the trial court is vested with the statutory authority to "revoke probation and suspension of sentence and cause the defendant to commence the execution of the judgment as original ly entered." Tenn. Code Ann. § 40-35-311(d) (1997). Furthermore, when probati on is revoked, "the origin al judgment so rendered by the trial judge s hall be in full force and effect fromthe date of the revocation of such suspension." Tenn. Code Ann. § 40-35-310 (1997). The tri al judge retains the discretionary authority to orde r the d efendant to serve the origi nal sentence. See State v. Duke , 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

In this case, the defendant admitted vio lation of the terms of probation. This alone is subst antial e vidence of record to support the trial court's rev

ocation order. See State v. Michael Emler , No. 01C01-9512-CC-00424, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 27, 1996) (wher e the defendant admits violation of the termsof probation, revocation by the trial court is neither arbitrary nor capricious); see also State v. Mi tzi Ann Boyd , No. 03C01-9508-CC-00246, slip op. at 3 (Tenn. Crim. App., Knoxville, No v. 1, 1996). There was evidence the defendant was succeeding in drug rehabilita tion after tes ting positive for ill icit drugs on numerous occasionsseveral m onths earl ier. Although she had violated the law during a domestic disturbance, she believ ed her criminal activ

ity resulted from the adverse side effects of prescription medicat ion. However, the fact remains that the defendant was gi ven a f avorable form of alternative sentencing and repeatedly failed to abide by the rules imposed upon her. We cannot say the trial court abused its discretion in revoking probation for the defendant's prohibited illicit drug use and criminal activity.

We find troubling, however, the aspect of the trial court's order which finds violations for failure to pay cos ts and fin es and imposes incarceration until such monies are paid in full. The rule regarding revocation of probation for failure4

to pay fines and costs is that a court may not rev oke until determining the un derlying
reasons payment has not been made. Massey v. State , 92 9 S.W.2d 399, 402 (Tenn. Crim. App. 1996) (citi ng Bearden v. Georgia , 461 U.S. 660, 103 S. Ct. 2064 (1983)). If the nonpayment is due to wi llful refusal to pay or failure to make sufficientbona fide efforts to o bta in the means to pay, the probati on may be revoked. Massey , 929 S.W.2d at 402 (citation omitted); State v. Dye , 715 S.W.2d 36, 40, (Tenn. 198 6) (citation omitted). If, on the other hand, the nonpayment ste ms fro m the probationer's inabili ty to pay, it may not form the basis for imprisonment. Massey , 929 S.W.2d at 402 (citation s omitted).

In th e case at bar, the court made no finding that the def endant's failure to pay

court costs and probation fees w as due to willful refusal o r failure to make sufficient bona fide efforts to obtain the funds to pay. The e vidence was that she had pai d $45 of the $372 owed for costs. The defendant's most recent paymentof $10 for court costs had been made in the month prior to the revocation hearing. The amount owed for probation fees was not in evidence. The probation officer testifie d some of the fee s "have been reduced," although he did not s pecify whether this reducti o n resulte d from th e defen dant's p ayments o r adminis trative cancellation o f amounts owed. The defendant te stified she is employed in child care, earning $140 to

$150, "maybe a little bit more" per week. She liv es alone, and her rentand utilities are $125 per week. She receives assistance from her aunt in paying the $66 per week for her dr ug rehabilitation prog ram. The defendant previouslyreceived Social Secur ity Disability

(SSDI) and Supplemental Secur ity Income (SSI) payments; however, those benefits had been terminated. According to the probation officer, the defendant is going through an appeals process in hopes of obtaining resumption of those benefit s. The record does not reflect w hether the $300 to $44 8 per month that the defendant previous ly received in SSD I and SSI benefits was in addition to or in the place of her current income from c hild care. The2 In cases where an indig ent defendant is sentenced to probation

conditioned upon payment of fines, cost s and/or fees, the trial cour t and/or the supervisory author

ity may find it producti

ve to inquire and deter mine an appropriate payment schedule. Determination of a payment schedule makes it clear to the probationer what is expected of him or her and allows for an orderly reduction of the indebtedness. If the pr obationer willfully

fails to abide by the terms, he or she is subject to revocation of probation, and the cou rt's inquiry is simplified by the fact that it or the probation department, in c onjunction with the probationer, previousl

y determined that the probati oner is able to make the payments specified in the sched ule.
5 state add uced no evidence regarding the defendant's physical condi tion, mental capabilities, education, transportation, and work experience -- factors which might be illustrat ive of whether she was able to obtain more lucrative employment. Thus,
a finding of willful refusal or failure to make sufficient bona fide efforts to obtain the means to reduce indebtedness for fees and costs would not be suppor ted on this record. The trial court erred in revoking the defendant's probation on the basis of failure to pay the fees and costs without such a finding, although the revocation is otherwise supported by the additional violati ons.
Further, we find that the trial cou rt s h ould not have required the defendant to "buy her way out of jail" absent a

finding she had the

means to

satisfy the indebtedness and willfull y had not done so. We are therefore compelled to modify the court's judgment to reflect that the defendant is to serve 30 days in jail forher violations of probati on. 2 After that time, she is to bereturned to probationary status until the t erms of her sentence are satisfied as they presently stand or are modifie d by the cou rt below.

_______________________________ CURWOOD WITT, JUDGE

CONCUR:6

_____________________________ PAUL G. SUMMERS, JUD GE

_____________________________ JERRY L. SMITH, JUD GE