# FILED
March 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JANUA RY 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9702-CC-00058 Appellee, ) ) LAWRENCE COUNTY VS. ) ) HON. JAMES L. WEATHERFORD, WILLIAM HOWARD GRAY, ) JUDGE ) Appellant. ) (Probation Revocation)

FOR THE APPE LLANT: FOR THE APPELLEE: SHARA A

. FLACY JOHN KNOX WALKUP Public Defender Attorney General & Repor ter DANIEL J. RUNDE GEORGIA BLY THE FELNER Asst. Public Defender Counsel for the State P. O. Box 1208 John Sevier Bldg. Pulaski, TN 38478 425 Fifth Ave. North (On Appeal) Nashville, TN 37243-0493 JAMES DA

NIEL FREEMON MIKE BOTTOMS West Gaines St. District Attorney General Lawrenceburg, TN 38464 (At the Hearing) JAMES G. WHITE Asst. District Attor

ney General P. O. Box 279 Lawrenceburg, TN 38464

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defen dant was indicted on June 8,1993, on charges of incest a n d stat utoryrape. He pled guilty to the incest charge, and the statutory rape charge wa s dismissed. By agreement, the defendant rec eived a sentence of fi ve years in the Departmentof Correction. This sentence was f ully suspe nded and the defendant was placed on immediate probation.

On August 1 9, 199 6, a revocation warra nt was issued and f ollowing a hearing on September 16, 1996, the trial c ou rt revo ked the defendant’s probation and ordered him to serve t he entir e sentence. The defendant now appeals th is revocation contending that the trial judge abused his discretion in revoking probation; that the trial judge erred in “engaging in extrajudic i al proceedings or by and through engaging in collateral considerations”; in r evoking the defendant’s probation when he relied on the advice of counsel; and that T.C.A. § 36-3-101, which prohibits marriage by a person to his adopted sister, is unconstitutional. We do not agree with the defendant’s contention s and, the refore, affirm the judgm ent belo w.

When a trial judge finds that a petitioner has violated the conditions of his or her probation, the trial judge has the authority to revoke probation. See T.C.A. § 40- 35-310. In this case, it is cl early within the t rial court’s discretion to revoke a defendant’s probation and order the original s entence to be served. See State v. Duke , 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

The violation warrant issued in this case alleged th at the defendant failed to obtain the consent of his probation officer bef ore leaving the county or state of his1 We note that our law pr ohibit s a probati oner from leavi ng the juri sdicti on of his prob ation off icer without the expres s perm ission of th e trial judge. See T.C.A. § 40-35-303(h). 3 residence, failed to make a full and truthful report as required, fail ed to obey the laws, and fail ed to carry out the instr uctions of the probation officer. At the conclusion o f th e hearing, the trial judge found that the defendant had left the state without per mission, had married the victim in violation of the probati on office r’s instru ctions, h ad contin ued to ha ve contact with the victim after having been directed against such contact, and had failed to comply with the TBI registry for one quarter.

There is little, if any, di spute concerning the evi dence introduc e d at the hearing. The defendant was convicted of inc est and directed by the probation officer to have no further contact with the vic tim . The defendant, relying upon the advice of his attor ney, went with the vi ctim to the state of Mississ ippi and they were m arried
. Apparen tly, Mississippi law allowed the marriage

of a brother tohis adopted sister but the same marr iage is prohibited by the st ate of Tennessee. SeeT.C.A. § 36-3-101. The proof also showed that the defenda nt’s att orney had talked with the probation officer about the possibility of

the defendant going to Mississippi to engage in marriage wi th the victim. However, there was no indicatio n that the probation officer consented or objected to this plan. The proof

further showed that the defendant had bee n directed to have no contact with the victim and that this directive had been violated on a regular basis as the defendant and the victim rode togethe r to work each day. The defendant, at the time of his reports, failed to reveal this relationship to the probation off icer.

We find it unnecessary to addr ess the defendant’s issue con cerni ng the constitutionality

of the statute prohibiting mar riages within a c

erta in degree of relationship. The defendant left the state of Tennessee without permission from his probation officer, 1 and he failed to truthfully report to his probation officer his continued as sociation withthe4

vict im. The defendant’s subsequent marriag e to the victim, even i f valid in the state of Mississippi, does not absolve the defendant of these viol ations of probation.

For the reasons stated above, w e find thatthe trial judge did not abuse his discretion in revo king the defendant’s probation. This finding makes it unnecessar y to answer the other issues raised i n the defendant’s brief. We affirm the j udgme nt of the court bel ow.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. W ELLES, Judge

______________________________ JERRY L. SMITH, Jud ge