# FILED

February 18, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1998

STATE OF TENN ESSEE, ) ) No. 03C01-9708-CR-00319 Appellee ) ) HAMILTON COUNTY vs. ) ) Hon. Stephen M. Bevil, Judge JAMES C. WOLFORD, ) ) (Probation Revocation) Appellant )

For the Appellant : For the Appellee : Don W. Poole John Knox Walkup Poole, Thornbury, Morg an & Attorney General and Repor ter Richardson 732 Cherry Street R. Stephen Jobe Chattanooga, TN 37402 Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493

William H. Cox III District Attorney General Bates William Bryan , Jr. Asst. District Attor

ney General 600 Market Street Third Floor, Court Buil ding Chattanooga, TN 37402

OPINION FILED: AFFIRMED

David G. Hay

es Judge2 OPINION

The appellant, James C. Wolford, appeals the rev ocation of his sentence of periodic confinement by the Ha milton County Criminal Court resulting in the reinstatement of his origin al sentence of four years in the Department of Correction.

The decision of the trial court revoking the appellant from his proba tionary status and reinstating the appellant’s four year sentence is aff irmed. However, this cause is remanded to the trial court for modification of the judgment to reflect suspension of the appellant’s dri ver’s license for a per

iod of four years as authoriz ed by law.

Background

At some time during the earl y morning hours of September 3 0, 1992, the appellant, a twenty-t

wo year old Chattanooga entrepreneur, struck a pedes trian, Rodney Walker, with his BMW automobile, resulting in Walker’s death. The appellant fled from the scene of th e accident to the apartment of his girlfriend. He then returned home where he informed his father of the incident. Hi s father escorted him back to the cri me scene where the appellant a dmitted his involvement to law enforcement officers. Tests subsequently performed on both the deceased and the appellant revealed that both men were legally intoxicated at the time of the offense.

On December 10, 1996, the appellant pled guilty to one count of vehicular homicide as a result of intox ication, a class C felony , in the Hamilton County1 The appellant was previously granted pretri al diver sion on the char

ge of leavi ng the scene of the ac cident aris ing from this sam e inciden t. At the time of the app ellant’s guilty plea to vehicular

homicide, t he appellant had successfull y completed hi s two year di versionary

period, the charge was dismissed, and the records r elati ve to thi s charge were order ed expunged.

2 Specifical ly, the appell ant was ordered t o report t

o the Hamilton Count y Workhouse by 7:00 p.m . on Dec emb er 26, 19 96. “From Mond ay through Friday of ea ch wee k, the [ap pellant] shall be r

eleased from the . . . PenalFarm at 6:30 a.m. in order that he may report t

o his business . . . .” “No later than 8:00 p.m. on ea ch day the appellant shall report back . . for his incarceration.” “On Saturday of each we ek, the said Defendant sha ll be released from 6:30 am to 6:00 p.m.” “During the appe llant’s work release s tatus from Mond ay through Saturda y, he shall not be anyw here othe r than at his busin ess or an y locat ion w here his bu sine ss ta kes him .” (Em pha sis added).

3 Appar ently, the trial judge noticed th e appe llant’s nam e in an article relating the c harity golfing event in the local newspaper. 3 Criminal Court. 1 As provided in the negotiated plea agreement, the trial court imposed a sentence of four years in the Departmen t of Correction. The court suspended this sentence and imposed a sentence of periodic confinement, orde ring the appellant to serve si x months on work rel ease at the Hamilton County Workhouse 2 followed by six years probation. In pronouncing sentence, the court deferred entry of the judgment until December 10, 19 97, at which time the court would determine whether the conviction should be diverted.

On June 4, 1997, the trial judg e contacted the appellant’s couns el, informing him that he was aware that the appellant had participat ed in a Muscular Dys

trophy golf tournament 3 sponsored by Golden Gallon convenience stores and that he would conduct a hearing on the follow ing day to determine w hether the appellant had violated the terms of his w ork release. The judge infor med counsel that, if the appellant did not appear in cour t the next day, a war

rant would issue for the violation. The following day, June 5, the appellant, accompanied by counsel, appeared before the court. The court i nformed the appellant of its knowl edge of the appellant’s participation in the golf tournament. The appella nt apologized and explained that his parti cipation was for “busine ss relations only.”

The trial court then questioned the appellant as to “[h]ow many other times have you played golf since you have been on work release?” The appellant resp onded that the Muscular Dystrophy tournament was the only time that he had played golf while on work release. He stated that he i s in the beverage dist ribution business and that Gol den4 The court inf ormed the appell ant that the tournaments t ook place on Apri l 30th and May 16th.

5 This hearing was su bsequently continued t

o June 30, 1997. 4 Gallon is his “biggest” account. Accordingly, he maintained that his participation in this golf tournament was “ very much in associ ation with his busines s.” The trial court concluded that the appell ant had violated the court’ s order and revoked the appellant’s work rel ease. The court also determined that the judgment should be entered at this time, concluding that there “were sufficient reason s why the court would not consider a deferr ed judgment even at a future date.”

On June 9, 1997, the trial judge again summoned the appellant before the court to inform the appellant that it had come to the court’s attention that the appellant may have made false statements to the court on June 5. The court advised the appellant and his counsel that the appellant w as facing a revocation hearing for perpetrating a fraud upon the court by making false representations at the June 5th proceeding. Speci fically, the trial co urt informed the appellant that, since the June 5th hearing, it had come to the attention of the cour t that the appellant had played in at l east two other golf tourna ments 4 despite the appellant’s denial of such activity

at the prior hearing. Accordingly, the tr ial court set a revocation hearing to be held on June 20th. 5

On June 30, 1997, a revocation hearing was held. The appel lant, now the twenty-seven y

ear old president of a bevera ge distributing company, admitted that he had indeed played in tw o additional golf tournaments, the Moc Docs tournament for the University of Tennessee at Chattanooga and the Fell owship of Christian Athletes tournament. He explained that he had interprete d the conditions of his work release to permit

him to go where his bus iness carried him, w hich included places out of the ordinary due to his position as presi dent of the company. Indeed, he stated that he played in the tournaments because no other indiv idual in the company could effectively replace him and he needed to foster good relations with5

his clients. The appellant admi tted that, after his release ev ery day from the workhouse, he would travel home to shower and dress before going to work. He also confessed that he had attended marr iage counseling sessi ons with his fiancee while on work release and he had, on occasion, gone to the driving range to hit practice golf balls.

At the conclusio n of the hearin g but before ma king his ruling, the t rial judge appropriately observ

ed: . . .Justice is supposed to treat everyone who comes before this Court the same. It doesn’t matter what your financial situation, it doesn’t matter what your race, your creed or religion, your sexual preference, it doesn’t matter. This Court has to consider every one the same if justice is to be blind. . . .[T]he longer I’m a judg e I find out that there are people w ho want justice to be blind unless it affects them . . .then let’s lift the blindfold j ust a little bit, Judge, because this is a di fferent situation. The Court can’t do that. Whether Mr. Wolford comes from an affluent family or whether he comes from skid row makes no difference to this Court. I have to look at the facts and c ircumstances in Mr. Wolford’s case the same as I would anyone here. . . . I have to look not only at what’s best for Clinton W olford, I have to lo ok to see wh at’s best for socie ty, what’s best for the community in its entirety because I’m held accountable not only for Mr. Wolf ord, but for everybody else in Hamilton County . . . . The court then made its findings and entered its ruling in the presen t matter:
I find. . . ample evidence to have set aside his work release. . . . Mr. Wolford has never . . . been willing to stand up and accept accountability and the responsibility for what he did beginning that very night when he started dr inking and he ran over

and hit Rodney Walker

. . . .

. . . Then he was placed on work rele ase. Now, t here’s so me as he s ays confusio n in his

mind as t

o wheth er or no

t he was allow ed to pla y golf, but this Court finds that Mr. Wolford never really -- his lifestyle was never really alter

ed while he was on w

ork release. He left the workhouse. He went home. He showered. He changed clothes. He went to work wh en he wanted to. If he wanted to play golf, he played golf. If he wanted to go to bus iness luncheons with clients, he went to business luncheons with clients. He went to mar riage counseling sessions. In the afternoon before he w ent back to the workhouse he dropped by his house, took a shower, cleaned up. There has not been anything to indicate hi s lifestyle is any different because he was on work release. He w

as not being punished by hi s actions. He indicated by his conduct that he w asn’t being punished.6 It’s been shown to the Cour t and . . . it’s clear th at he did not have to play in these golf tournament s. He played in them becaus e he wanted to and no

t only d id he pl ay in th ese golf tournam ents, but even if I granted him the benefit of the doubt and sai d, okay, Mr. Wolford, you played in these for business relationships, how i n the world that justifies going to Moccasin Bend and hitting golf balls when he’s supposed to be at work or in the workhouse? . . . It just shows me that he has not yet willi ng to have been able to stand up and accept the responsibility and ac

countability for what he did. And then when confronted by that , and I asked him, “Mr. Wolford, have you played golf any other time other than . . . this tournament?” And he said, “No, I have not .” Very emphatic, and Mr. Wolford’s not a neophyte. He’s 27 year s old. He’s a businessman that deals with presidents of companies. . . . H e’s got 10 to 12 employees.He meets with these business pre sidents so I don’t find that he’s naive as far as those types of things, and the n when asked again today , “Why did you lie?” And he said, “I didn’t hav e an opportunity to consult with anybody els

e. I didn’t have an opportunity to talk to anybody.” Again, he’s not wil ling to accept the accountability and responsibility. you either tell the tr uth or you tell a lie. . . . A very simple q uestion, “Mr. Wolford, did you play golf any o ther time ?” All he ha d to say was, yes, sir, I d id, and we probably wouldn’t be here today, but once again,not wanting to stand up and accept the responsibili ty and the accountability, he said, “No, that’s the only time.” And then it was only t

oday in his testimony when the Court quiz zed him and I asked him, “Have there been other times that y ou played?” “Oh, you mean played in golf tournaments?” “No, have you play

ed golf at any other time?” “Well, I did hit range balls ov er at Moccasin Bend.” Mr. Wolford intentionally, deliberately lied to this Court. He misrepresented the facts as he’s done so many times by his conduct to do what’s in the best interest of Clint Wolf ord. It was in his best interest to lie to the Court and he did. You don’t need time to consult with counsel when a q uestion is asked of you and the answer is either yes or no and you tell

the truth or tell a lie.

. . . Mr. Wolford, you put me in a position w here I can do nothing else. If there’s going to be jus

tice in this courtroom and that justice is going to apply across the board to each and every individual that comes before it, you’ve put me in a position by your actions, by your refusal to accept accountabil ity and res ponsibilit y, by del iberately

lying to this court room, to this Court other than to r evoke your probation and order that your sentence be served.6 The trial co urt’s o rder follow ing th e app ellant Dec em ber 1 0, 19 96, g uilty plea prov ides in pertinent p art:

Becau se of the application of the De fendan t for judicial dive rsion and the State not objecting to the same, but not thereby agreeing to the sam e, the Court defers entry of judgment at thi s time for a peri od of one year and until

December 10, 1997, at which time the Court will review this matter.
As a conditi on of probati on pursuant to Tennessee Code Annotated 40-35- 313, the Defendant shal l report to the cust

ody of the

Hamilton County

Workhouse no later t han 7:00 p.m. on December 26, 1996, to complete a term of six months on a work release b asis. . . . It is further Order

ed that as a condi

tion of the deferralof the entr y of judgment herein, the Defendant is p rohibi ted from drivi ng for a peri od of one year , from December 10, 1996, unti l December 10, 1997. It is further Ordered that Defendant’s sentence if not diverted shall be to a term of 4 years as a

standard range o ne offender. It i s further Order ed that duri ng the 7 I. Nature of Sentenc

e Imposed by Trial Court

Before addressing the merits of the appellant’s issue, w e are constrained to determine the exact nature of the sentence imp osed by the trial court. As previously noted, the appellant, at the time of his revocation hearing, was serving a s entence of periodic confinement although no j udgment had been entered in this c ase imposing any form of a sentence. The trial c ourt’s order specificall

y provided that entry

of judgment was deferred for one year “at which time the court will review this matter.” Moreover, the appellant, as required by the j udicial diversion s tatute, Tenn. Code Ann. § 40-35-313, was nev er placed under any superv isory agency. The arrangement, thus, was on e without the benefit of statutory authority. The State and the appellant agree that the trial court’s reference to the sente ncing provision of “six months on work release” constitutes more properly , periodic confinement, see Tenn. Code Ann. §40-35-307, as it fail s to comport with the pro visions of Tenn. Code Ann. §40 -35-315. Accord ingly, the appella nt argues that he , although periodically confined, w as technically under no sentence as no judgment had been entered.

From the terms of the trial cour t’s order, it appears that the trial court grant

ed the appellant a six ye

ar period of probation pursuant t o the judicial divers ion provisions of Tenn. Code Ann. § 4 0-35-113. 6 As a condition of this probati on, thependency of t he deferralof the entr y of the judgment, the Defendan t shallat the expirati on of the 6 months repor t to the Office of Probation and Parol e. . . a nd shall abide by the normal conditions of probation under active supervision for a period of 6 years, pe nding fur ther Ord ers of the Court. 8 trial court ordered the appellant to serve six months in the workhouse on work release status.

There is little dispute that imposing a jail term as a condition of probat ion is incompatible with the pr ovisions of the judicial

diversion statute, Tenn. C ode Ann. § 40-35-313 (1996 Supp.). See State v. Cable , No. 03C01-9409-CR-00349 ( Tenn.Crim. App. at Knoxville, Jun. 1, 1995); Criminal Cases - Post Conviction DeferralProcedure, Tenn. Op. Atty. Gen.No. 92-33 (Apr. 16, 1992). Inasmuch as no judgment of guilt is to be entered when judicial diversion is granted, the trial court would not be authorized to sentence the defendant to a period of confinement

. Cable , No. 03C01-9409-CR-00349 at n. 4; Tenn. Op. Atty. Gen. No. 92-33 . Thus, although the court may impos e a fine or may require r easonable public servic e, or both, as a condition of judicial diversion, it may not require confinement in the workhouse. Tenn. Op. Atty. Gen. No. 92-33. Accordingly, the trial court erred in imposing a six month per iod of work release in the workhouse as a conditi on of probation under Tenn. Code Ann. §40-35- 313.

If the trial court’s sentenc e is unauthorized, we

must then determine the sentence contemplated by the cour t in view it’s pronouncement, i.e. , a grant of judicial diversio n without confinement or a sentenc e of periodic confinement coupled with probation. A tri al court, within it s discretion, may gr

ant diversion to a defendant who “has not previous ly been convicted of a felony or a class A misdemeanor;” and “is found guilty or pl eads guilty to a misdemeanor which is punishable by imprisonment or a Class C , D, or E felony.” Tenn. Co de Ann. § 40-35-313(a). If the court grants diver

sion, the court may “w

ithout entering a judgment of guilty and with the consent of the [defendant] . . . defer further proceedings and place the per son on probation upon such reasonable conditions as it may req uire . . .” Tenn. Code9

Ann. § 40-35-313(a)(1)(A). If the candidate for judicial diversion successf ully completes his term of probation, the court shall dismiss the case “without adjudication of guilt.” Tenn.Code Ann. § 40-35-313(a)(2) . However, a conv iction may be entered where the defendant fails to fulfill his oblig ations of probation. See State v. Udzinski , No. 01C01-9610-CC-00431 ( Tenn. Crim. App. at Nashvi lle, Feb. 5, 1998).

Essentially, judici al diversion is post -conviction pretri al diversion. The difference between the two bein g that judicial div ersion follows a determin ation of guilt and the decision to grant diversion r ests with the trial court, not the prosecutor. See State v. Anderson , 857 S.W.2d 571, 572 (Tenn.Crim.App. 1992). The pretr ial diversion statute, Tenn. Code Ann. 40-15-105(a)(1) (1995 Sup p.), specifically excludes those persons ch arged with vehicular homicide by intoxication from eligibility. See State v. Burdine , 888 S.W.2d 463, 465 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994); see also Availability of Pr e-Trial Diversion in Vehicular Assault and Vehicular Homic ide Cases, Tenn. Op. Atty. G en. No. 93-34 (Apr. 6, 1993). Cf. State v. Rhodes , 917 S.W.2d 708, 71 1-13 (Tenn. Crim. App. 1995), perm. to appeal denied , (Tenn. 1996). See, e.g. , State v. Wolford , No. 03C01-9308- CR-00259 (Tenn. Crim. App. at Knoxville, Mar. 6, 1995), perm. to appeal denied , (Tenn. Jul. 3, 1995) (pretr ial diversion denied w

here defendant charged with vehicular homicide by

intoxication). Thus, pr e-trial diversion

may not be granted to those charged with v

ehicular homicide by i ntoxication under Tenn. Code An n. § 39- 13-213(a)(2) (1991).

“Tennessee courts have rec ognized the similari

ties between judicial diversion and pretria l diversion and, thus, have drawn heavil y from the case law governing pretrial diversion to analyze cases involving judicial diversion.” State v. Cutshaw , 967 S.W.2d 332, 343 (Tenn. Crim. App. 1997). We find no reason to do differently. Indeed, it wo uld be illogical for thi s court to conclude that those charged10

with vehicular homi cide by intoxicati on should remain eligibl e for a grant of judicial diversion while being foreclosed from seeking pretrial diversi on. Cf . Sentencing Commission Comments, Tenn. Code Ann. § 40-35-313 (“[Judicial di version] appl[ies] to all misdemeanors except for driving

under the influence and drivi ng on a canceled, suspended or revoked license.”). Accordingly, the appellant, in the case sub judice , was not eligible for a grant of judicial diversion. Thus, this court interprets the sentence imposed by the trial court to

be that of periodic confinement coupled with a term of probati on.

II. Revocation of Probation

The appellant contends that the tri al court abused its discr etion in revoking his probation. Encompassed w ithin this broad challeng e, the appellant complains that he was not provide d adequate, i.e., written , notice of the revocation proce eding, thereby violating

his due process right

s. He also asserts that he did not violate the conditions of his work release because “playing golf” is “in the course of” his business.

When it comes to the attention of a trial court that a defendant who has been released upon suspension of sentence ha s been guilty of breach of the laws of this state or has violated the conditions of probation, the cour t has the power to issue a warrant for the defendant’s arr est for this violation. Tenn. Code Ann. § 40-35-311(a) (1996 Supp.). See also State v. Stubblefield , 953 S.W.2d 223, 224- 25 (Tenn. Cri m. App. 1997). The court must hold a hear ing at the earliest prac

ticable time. During this hearing, the court is empowered to revoke the defendant’s probatio n if the court should find by a preponderance of the evidence that the defendant has so v iolated the conditions of his probation. Tenn. Code Ann. § 40-35-311(b), - (d). In other words, the proof of the violation need not be established b eyond a reasonable11

doubt. State v. Harkins , 811 S.W.2d 79, 82 (T enn. 1991). Rather, the proof is sufficient if it allows the trial court to make a consc ientious and intelligent

decision. Id . (citing State v. Milton , 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)).

On appeal, the findings of the tri al court have the wei ght of a jury verdi ct, and, as such, a reviewi ng court may not distur b the trial court’s rul ing absent a clear abuse of discretion. Harkins , 811 S.W .2d at 82 (citing State v. Williamson , 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981)). To find an abuse of discretion, the reviewing cour

t must conclude that the record contains no substantial ev idence to support the decisions of the tri al court. Harkins , 811 S.W .2d at 82 (citing State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978), cert. denied , 439 U.S. 1077, 99 S.Ct. 854 (1979)).

A. Inadequat e Notice A defendant who is granted pr obation has a liberty i nterest that is protected by due process of law. See Stubblefield , 953 S.W .2d at 225 (citin g Practy v. State , 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974)). Inher ent within the defendant’s due process rights is the right to writte n notice of the allegations w hich form the basis for the proposed revocation of his sentence. See Gagnon v. Scarpelli , 411 U.S. 778, 786, 93 S.Ct. 1756, 1761-62 (1973); State v. Wade , 863 S.W.2d 406, 408 (Tenn. 1993); Practy , 525 S.W.2d at 679-80. Failure to provi de such notice offends due process. See State v. Worley , No. 03C01-9608-CR-00322 ( Tenn. Crim. App. at Knoxville, Aug. 29, 1 997) (citing Gagnon , 411 U.S. at 786, 93 S.Ct. at 1761- 62; Wade , 863 S.W.2d at 408). The appellant, although conced ing oral notice, complains that, because the trial court failed to provide him written notice of his violation, he was deni ed due process of law.

As commonly understood, the functi on of notice is to provide for ewarning to the person sought to be charg ed of the existence of the particul ar facts in question12

or to enable him of acquiring the means of knowing it. See generally 58 A M .J UR .2 D Notice § 2, § 6 (1989); B LACK ’ S L AW D ICTIONAR Y 1061,1062 (6 th ed. 1990). Al though the appellant was not prov ided written notice, th e trial court did, on June 9, 1997, more than adequately inform in open court both the appellant and hi s counsel of the reasons for the upcoming rev ocation proceeding. This cou rt has on previous occasi ons rul ed that o ral not ice, co nstituting act ual noti ce, is s ufficient to sati sfy constitutional requir

ements of due process regarding a probation revocation hear ing. See. e.g. , State v. Peck , 719 S.W.2d 553, 556-557 (Tenn. Crim. App. 1986); State v. Carden , 653 S.W.2d 753, 754-55 (Tenn. Crim. App. 1983); Stamps v. State , 614 S.W.2d 71, 73-74 (Tenn. Crim. App. 1980). Althoug h written notice may be preferred, we conclude that the appellant was not prej udiced, misled, or surpri sed by the court’s failure to iss ue written notice. Thus, the appellant’s claim of procedur al due process error is w

ithout merit.

B. Propriety of Revocation Next, there is no dispute in the record that, w hile on work release status, the appellant, by his own admission, played in three golf tournaments, hit practice golf balls during his lunch hour, attended marriage counseling sessions during his lunch hour, and casually engaged in other non-business rel ated activities. This court finds no reason to dispute the trial court’s finding that the appellant ’s participation in these golf outings does not amount to bus iness related matters as the appellant was not required to participat

e in these events. See State v. Leach , 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995) (ev idence need only show th at trial court exerc ised a conscientious and intelli gent judgment in making the decision to revoke the probation). We agree that these activities violated the conditions of the appellant’s work release. See, e.g. , State v. Bonner , No. 01C01-9710-CR-00 446 (Tenn. Cr

im. App. at Nashville, Aug . 5, 1998) (violation of c onditions of work releas e sufficient to revoke defendant from probated sente nce).7 The followi ng cases held revo cation prop er where probat ioner fai led to make a full and truthful rep ort to his pro bation off icer. See, e.g. , State v. Gray , No. 01C01-9702-CC-00058 ( Tenn. Crim . App. at N ashville, Ma r. 24, 1998 ); State v. Johnson , No. 03C01-9705-CR-00175 ( Tenn. Crim . App. at Kn oxville, Feb . 13, 1998 ), perm. to appeal de nied , (Tenn . Nov. 2, 19 98); Portal v. State , 675 So .2d 708 ( Fla. Dist. C t. App. 3d 1 996); Edwards v. Florida , 561 So .2d 1354 (Fla. Dist.. Ct. App . 1990); State v. Jones , 847 P.2d 1176 (Idah o Ct. A pp. 1 993 ). Inde ed, a prob ation er’s relea se s tatus has b een revo ked for th e wilfu l mis repr ese ntatio n of h is nam e, the nam es of his fam ily mem ber and his prior crim inal record to his prob ation office r. See Rose boro v. S tate , 528 So.2d 499 (Fla. Dist. Ct. App.1988). 13 In addition to the appellant’s clear violation of the agreed to conditio ns of his work release status, the trial court also cons idered, as a basis for rev ocation, the appellant’s untruthfulness to the court at the previous J une 5th hearing. It is cl ear from the record that the appellant made a false statement to the trial c ourt at the June 5th hearing by deny ing any participati on in any golfing ev ents except for the Muscular Dystrophy

tournament. While we acknowledge, as argued by the appellant, that his false statements were not made under oath and, ther eby, not a ”breach of the laws of this state,” see Tenn. Code Ann. § 40-35-311(a)( 1996 Supp.), we recognize that no court system can function without safeguards against actions that interfere wi th its administration of justice. As such, it woul d be illogical to assume that a probationer is required, as a condition of proba tion, to make “full and truthful reports” to his/her probation off icers, 7 but be permitted to make deliberate and inaccurate r epresentations to the court. We can reach no legitimate conclusion other than finding that a probationer has an obli gation to be candid with the court as an implied condition of probation.

Indeed, the purpose of probation is t o give a defendant an opportunity to be rehabilitated under proper c ontrol and supervision.A trial court, in it s discretion, may revoke a probationer from this release status if the probationer demonstrates that he is no longer entitl ed to such a release status. As understood by the courts of this state and as directed by our sentencing provi sions, a probationer is not entitled to remain on release status if he has shown that he cannot comply with the laws of this state, that he has vi olated a condition of his probati on, or that he has not demonstrated behavior indic ating good citizens hip. This suggests that a probationer14

may be revoked if his cond uct demonstrates that probation i s not achieving its rehabilitative purpose

. See State v. Lee , 773 P.2d 655, 657 (Idaho Ct. App. 1989) (citations omitted). Cer tainly, a probationer’ s dishonesty with the trial court is an important measure in determining whether a probationary status is eff ective on this particular probationer. While the appellant’s dishonesty w ith the trial court is

not a specifically enumerated g round for revocation, it r emains an action contrary to societal notions of honesty and uprightness and reflects an unwillingness to admit one’s wrongs. Cf

. State v. Dowdy , 894 S.W.2d 301, 306 (Tenn.Crim.App.1994) (lack of candor sufficient ground to deny probation).

In the opinion of this court, the trial court express ed sound and just reasoning in co nc lu di ngth at

fu rt he r p ro ba

ti on in th e p re se nt

case wa s i na pp ro pr ia

te . We conclude that the trial court did not abuse its discretion in revoking the appellant’s probated sentence. Finding no error in the court’s decision, we affirm the order revoking probation.

III. Conclusion

The judgment of the trial court r evoking the appellant's probation is affirmed. Additionally, we note that the trial court’s suspension of the appellant’s driver’s license for a period of one year is in error. Tennessee law provides that “[t]he court shall prohibit a defendant convicted of vehicular homicide f rom driving a vehicle in this state for a period of time not l ess than three (3) year s nor more than ten (10) years).” Tenn. Code Ann. § 39-13-213 (c). Thus, this case is remanded to the trial court for modification of its order to reflect tha t the appellant’s driver’s license shall be suspended for a period of four year s. See Cheairs v. State , No. 02C01-9304-CC-0070 (Tenn.Cr im.App. Oct. 26, 1994) ("Tennessee l aw gives the courts authority to correct an illegal sentence at any time, even if it has otherwise15

become fina l.") ( citing State v. Burkhart , 566 S.W.2d 871, 87 3 (Tenn.1978)).

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________ JERRY L. SMITH, Jud ge

________________________________ JAMES CURW OOD WIT T, JR., Judge