# FILED
July 25, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT KNOXVILLE MAY 1997 SESSI ON

STA TE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-96 0 8-CR-0031 4 ) vs. ) Knox County ) YVONNE B URNETTE, AL IAS , ) Honorable Ray L. Jenkins, Jud ge ) Appellant. ) (Probation R evocation) )

FOR TH E APPEL LANT: FOR THE APPELLEE: MARK E. STEPHENS JOHN KNOX WALK UP Distric t Public Defender Attorney Gen eral & Repor ter PAULA R. VOSS (Appeal) GEORGIA BLYTH E FELNER DAVID GAL L (Hearin g) Assistant Att orney Gener al Assistant Public Defende rs Criminal J ustice Div ision 1209 Euclid Avenue 450 James Roberts on Parkway Knoxvil le, TN 37921 Nashvil le, TN 37243-0493 RANDALL E. N ICHOLS Distric t Attorney General LEON FRANKS Asst. Dist rict Attor ney General P.O. Box 1468 Knoxvil le, TN 37901-1468
OPINION FILE D: ____________________
AF FIRMED
CURWOOD WITT JUDGE2 OPINION The appellant, Y

vonne Burnette , appea ls the Knox County Criminal Court's revocati on of her proba tionary s en tence. As a result of the probati on revocatio n, she is cur rently s erving her 8 year sentence for sal e of cocaine, aClass B felony, in c ustody of the De partment of Correc tion. In this

appeal, she contends the trial court abused its discretion in revokingher probation. Having reviewed the record of the proceedings below, we find no rever sible erro r and affirm the judg ment of the lower court.

The appellant was convicted of sale of coca ine foll ow ing her g uilty plea on January

5, 1994. On Mar

ch 30, 1994, shewas gi ven a sentence of 8 years in the Department of Correction, suspended in fa vor of probation. A fine and court costs were assessed. On Ja nuary 31 , 1995, a probati on violati on warrant was issued for the appellant based on her alleged fail ure to make pay ments toward her court costs and to comp ly wi th community s ervice r equirements. Counsel was appointed. The Knox

County Crim i n al Court ther

eafter dismissed the warrant, apparently after

the appellant furni shed proof of a medical condition excusing her failure to comply w ith the terms of pr obation. A

sec ond warran t was is sued on February15, 1996, this t ime allegi ng the appella nt ha d broken several rules of probation, including failing to obey the law (having been arrested for DUI, failure to appear and criminal trespass), falsely representing that she had nothad any contact with law enforcement

officers, failingto report to her probation officer as instr ucted, using intoxicants to exce ss, and failingto pay probat ion fees. Counsel was appointed, and the matt er came on for heari ng on Marc h 22, 1996.

At the probation revocation hear ing, the state presented evidence of DUI and c rimin al tre spas s con victio ns th e app ella nt re ceive d since begi nning her probationary term, her failur e to report mul tiple new criminal c harges si nce being placed on probation, her false statements that she had not h ad contact with law enforcementofficers, the difficul ties the probat ion offic ers had in g etting her to1 The ap pellan t's allege d failu re to not ify her pro bation offi cer of a change

of address was

not alleged in the war rant.
2 The record is devoid of proof of any substance abuse p roblem other than the fact that the appel lant had been conv icted of sale of cocaine and DUI. The issue of the appell ant's "problems with drug s and alcohol" i s raised onl y in the appe lla nt's

bri ef. 3 report twice a month, her failur e to pay the fundsowed, and her failure to repo rt a change of address. 1 The appellant admit ted she had violated t he terms of her probation by committi ng other cr imes; however, she genera lly deni ed the other allegations. She testified s he did not understand she had to report any subsequent chargesunless she ul timately received a convict ion, she was nev er told she had to report to her probati on officer more than oncea month, she had not mov ed from the address given t he probation officer, and she had b e en unable to pay court costs because she had under gone s urgery . The appellant ac knowledg ed she had not complied with al l of the terms of probation and asked the court for a second chance. The trial cour

t revoked probation, re asoning, "There is a point at which the patience and understanding of the trial court is exhausted, and we'v e reached it i n this case. Let the probation be revoked, required t o serve thecomplete sentence. "

In her appeal, the appellant plea ds for a second chanc e at a noninca rcera tive sentence due to her family obli gations and s ubs ta nce abuse problems, 2 notwithst anding her admi tted viol ation of the ter ms of probation. In t hat vein, she urges us to cons ider the objec tives of the C riminal Codeand the Sentencing Act and impose a me asure less s evere than i ncarceration , such as more string ent terms of probati on.

The standard of rev iew upon appeal of an order revoking probation is the abuse of discretion stand ard

. State v. Hark ins , 811 S.W.2d 79, 82 (Tenn. 1991). In or der for an abuse of discret ion to occur, the revi ewing court must find that the record contains no subst antial evi dence sufficient to support the conc lusion of the trial judge that the vi olation of the terms of probation has occurre d. Harkins , 811 S.W.2d at 82; State v. D elp , 6 14 S.W .2d 395, 398 (Tenn . Crim. App. 1980).3 Particular ly, we note that the appel lant's medical excuse from her treating physicia n excused her

from work for

four to six

months from March 10, 1995. The revocati on hearing w as held on March 22, 1996. The uncont radicted evidence at that time was that the appellan t had neither per formed any of her community ser

vice req uirement nor pai d her probation fees. She furnished the 4 The trial cour

t is requ ired only

to find thatthe vio lati on of prob atio n occ urre d by a preponderance of the evidence. Tenn. Code Ann. § 40- 35-311(d) (S upp. 1996). Upon a finding of a v iolation, thetrial court is vested with the statutoryauthority to "revoke pro bation and suspension of sent ence and cause the d efendant to
commence the executi on of the judgment as origi nally enter

ed." Tenn. Code Ann. § 40-35-311(d) (Supp. 1996). Furthermore, when probati on is revoked, “the original judgmentso rendered by the trial j udge shall b e in full force and ef fect from the date of the revocation of such suspension." Tenn. Code Ann. § 40 -35-310 (1990). The trial judge retains the discre tionary authority to order the de fendant to serve the original sentence. See State v. Duke , 902 S.W.2d 424, 427 (Tenn . Crim . App. 1995).

The defen dant admitted violation of the terms of probation . This is substantial ev idence of record to support the tr ial court' s revocat ion order. See State v. M ichael Emler , No. 0 1C01- 9512-C C-004 24, sl ip op. at 4 (Te nn. Cr im. App., Nashv ille, Nov . 27, 1996) (w here the defendant admits violati on of the terms of probation, revocati on by the tr ial court i s not arbitr ary or capricious) ; see also Stat e v. Mit zi Ann Boyd , No. 03C01-950 8-CC-00246, slip op. at 3 (Tenn. Crim. App., Kn oxvil le, Nov. 1, 1996). The lower court was statutoril y authoriz ed to impose the ori ginal senten ce upon revocation of probation. See Tenn. Code Ann. § 40-35-310 ( 1990). Contra ry to the a ppellant's as sertion, we are not required at this stag e to reconsider the sentencing principles

. State v. Howard Luroy W illiamson, Jr. , No. 02C01-9507-CC-00201, slip op. at 4 (Tenn. Crim App., Jackson, Sept. 30, 1996) ( citation omitt ed). We note that the appellant has made minimal efforts, at best, to comply with the terms of probation and rehabilitate herself. Based on her track record, she g ave the tri al court no reason to beli eve her per formance would i mprove. 3 We cannot say the trial courtcourt wi th no additional medical documentati on and provi ded no excuse for her

behavior ot her than that she had been unable to work at the ti me of the previous revoc atio n hea ring b ecau se sh e had unde rgone thre e sur gerie s. Ad diti ona lly, the appellant di d not contradic t the probation officer's testimony that she "has to be begged to come in to report" and shows up only when warned of her last chance to repor

t.
4 The court announced at the conclusi on of the hearing it had "consider ed all the elements

required to be considere d in the Stiller case, wi thout enumeration." This is likel y a reference to Stiller v . State , 516 S.W.2d 617 (Tenn. 1974), w hich deals w ith the defendant's r ight to appeal a denial of probation at the time of sentencing . Although Stiller is not contr

olling of the issue that was before the lower court, the court's inapt citation to that case is harmless error. Tenn. R. App. P. 36(b); Te nn. R. Crim. P. 52(a).

5 Due process r

equires thecourt conducti ng the probati on revocati on hearing to mak

e findings of fact. Gagnon v. Scarpelli , 411 U.S. 778, 93 S. Ct. 1756 (1973); Delp , 614 S.W.2d at 397. In this case, the revocation order cont ains find ings o f fa ct th at "t he de fen dan t has been guilt y of vio lati ng the laws of this State, and ha s otherwise violated the conditions of her prob ation." W hile a more specific enumeration of how the appellant "oth erwise violated t he conditions of her

probation" is

preferable, any

arguable defic iency is

not prejudicial to the appellant in light of the specific findin g she vi olated the laws of the state, w hich itself i s a sufficient g round for revocation. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52( a); see State v. M ilton , 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984) (probationer who was not prejudi ced by proc edural deficienc ies at revocation hearing not entitled to reversal). 5 abused its dis cretion in or dering the ap pellant to ser ve the terms

of her origi nal sentence, that i s, eight years in the D epartment of Corre ction.

In reaching this conclusion, we do not disregard the appe llant's arguments that the lower court reli ed on inappropri ate authority as the basis for revokingprobation 4 and failed to make findi ngs of fact on the record. 5 Those issues are not dispositive of this appea l.

The judgment of the lower court is affirmed.6 _______________________________ CURWOOD W ITT, JUDGE

CONCUR:

_______________________________ JOSEPH B. JON ES, PRESIDIN G JUDGE

_______________________________ JOSEPH M. TIPTON , JUDGE