### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A pril 22, 20 03
STATE OF TENNESSEE v. BARRY LEE ARMIS TEAD
Direct Appeal from the Criminal Court for Davidson County

No. 99-D-2724 Seth Norman, Judge

No. M2002-01877-CCA-R3-CD - F iled September 11, 2003

Barry L. Armistead appeals fr om the Davidson Cou nty Crimin al Court’ s revoca tion of his probationary

sentences. He claims that the lower court err ed in revoking probatio n becau se the sta te failedto prove a

violation by a preponder

ance of the evidence. Because wedisagree, we affirm the lower co urt’s judg ment. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which J OE G. R IL EY and N ORMA M CGEE O GLE , JJ., joined.
William A. Lane, Murfreesboro, Te nnessee, for the Appellant, Barry Lee Armistead.

Paul G. Summ

ers, Attorney

Genera l & Repor ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; Victor S. Johnson, Di strict Att

orney Genera l; and Sar ah Davis , AssistantDistrict A ttorney Genera l, for the Appellee, State of Tennessee.
OPINION

Upon his guilty pleas, the de fenda nt was conv icted of two counts of aggra vated assault. Pursuant to the plea agreement, he was se ntenced to two terms of four years e ach, to be served consecutively to ea

ch other and consecutively to the sentence for a prior conviction in Putnam County. The sentence s were to be served on probation.

Befor e the comme

ncement of the defendant ’s Davids on County sentenc es, his Davidson County probation officer procured a violation warrant, in which it was alleged that the1 Ap pare ntly, the orig inal viol ati on war rant

cont aine d a cl eri cal error in t hat i t al leged that

the def endant vi olated probat ion on a date earlier t han the date upon which the defendant ’s s entences were imposed. The record ref lect s that the defendant made a timely objection to t he irregulari ty, upon which t he court dismissed the warrant and in dicate d its willingness to i ssu e a cor rect ed warr ant upon t he st ate’ s pre paration of same. The af

fidavi t th at is in t

he record contains the cleri cal err or menti oned abo ve, bu t the warr ant itself appears in order. We p resume by the defendant’s s ilence at t he hearing below and on appeal that he has no quibble wit h the warrant i n its present form and that

he does not c ontest

that he received adequate notice of the f actual basis upon which t he state sought

revocation.

2 On ly some of these grou nds a re actu ally alleged in the vio lation w arran t that is befo re us. -2- defendant violated p robation by violating the law , failing to report to his probation officer, and failing to pay the requ ired fe es. 1

The transcript of the defendant’s guilty plea hearing is contained in t he ap pellate record. It reflec ts an excha nge be tween de fense c ounsel and the cour t concer ning whe ther th e defendant could serve his Davidson County sente nces through the probation office in Pu tnam Count y, which is the defendant’s home. When defense counsel inquired w hether the defendant should report to Dav idson County probati on authorities before the defendant’s case s were transferred to Putnam County, the court instructed that the defe n d ant should see “Mr. Sears” before lea ving court that day. The

court advised, “Mr. Sears will talk to him about it and tell him what to do.”

A tthe revocation hearing, the state pre sented the testimony of James Foster, the defendant’s probation officer. Foster testified that the defendant had never reported to him. Foster filed the violation warrant after learning tha t the defe n dant had b een arr ested on t heft cha rges in Wilson County. Foster claimed tha t he pursued revocation because the defe ndant had violatedthe terms of probation by incurring a new arrest, failing to report the ne w arrest, failing to provide proof of employment, chang

ing his residence without notifying Foster , failing to report, and failing to stay away from the v

ictim. 2

The defenda

nt took the

stand to op

pose rev ocation. He testi f ied that a

fter his Davidson County plea hear ing, he was taken into a hallway where he filled out paperw ork with a probation officer who told him that his paperwork would be faxed

to Brenda Reed, the defendant’s Putnam County probation officer. The defendant’s understanding wa s that he would be supervised by Putnam County probation officials for the Davidson County sentences. He was unaware that he had been as signed a Davidson County probation officer. The defendant testified that the a lleg e d Wilson Count y the ft offen se occur red in 199 7 or 1998, which wa s prior to t he David son County offense s. The Wilson County theft charg e was still unresolved at the time he entered his guilty

pleas in Davidson County in 2000. The defe ndant conceded that after t he Davidson County sentences
were imposed, he “jumped bail” in Wilson County in 2001 and was a rrested . The def

endant li kewise conceded that he was presently ser

ving a Putnam County sentenc e in the Department of Correction due to a “technical violation” of probation.

The standard of review upon appeal of an or der r evokin g probation is the abuse of discretion standard. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). For an abuse of discretion-3-

to occur, the reviewing court must find that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the terms of probation has occ urred. I d . at 82; State v. Delp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The tria l court is r equired only to find that the violation of probation o cc ur re d b y a preponderance of the evidenc e. Tenn. Code Ann. § 40 -35-311(e) (Supp. 2002). Upon finding a violation, the trial court is vested with the statutory authority to "revoke probation and suspension of sentence a nd cause the defendant

to commence the execution of the judgmen t as original ly entered." Id. Furthermore, when probation is revoked, " the original judgmen

t so rende red by the trial judge sh all be in f

ull force and effect from

the date of the revocationof such susp ension." Id. § 40-35-3 10 (1997) . The tria l judge r etains t he discre tionary authority to order the defendant ( 1) to serve his sentence in incarcera tion; (2) to serve the probationary

term, be ginning

anew; or (3) to se rve a pr obationa ry period th at is extend

ed for up to an additional two years. State v. Hunter , 1 S.W.3d 643 (Tenn. 1999). The determination of the proper conseq uence e mb odies a se parate exercise of discr etion fro m the initia

l finding that a violation has occurred. See id. at 647; State v. Duke , 902 S.W.2d 424, 427 (Tenn. 1 995); State v. Ricio L. Conner , No. 02C01-9807-CR-00201 (Tenn. Crim. App., Jackson, Oct. 31, 1999).

In this case , the def

endant challeng es only

the propr iety of the re vocatio n, no t the consequenceimposed as a result. Therefore, we concern ourselves solely with the adequacy

of the basis for the revocation. I n that regard, the

trial cou rt did not ma

ke findin gs abou

t its basis for the revocation. Thus, we will consider whet her t he state demonstrated by a preponderance of the evidence that the defendant violated probation in any of the thre e way s a lleged in the revocation warrant – violating the law, failing to report to his probation officer, and failing to pay the required fees.

We are compelled by the defendant’s admission that he “jumped bail” in Wilson County and was arres ted f

or this reason. Although the factual underpinning s of this misdeed are noticabl y absent from the record, we do not believe it is necessary for us to know the precise nature of the offense where the defenda ntadmits wrongdoing. Failure to appea r, or “ba il jumping ” as it is commonly

called, is a criminal offense. See Ten n. Code Ann. § 39-16-609 (Supp. 2002). The defendant did not make any cla

im thatthe arrest was unwarranted based upon the conduct preceding it, and ther

e is no indi cation in

the rec ord of an

y mis take in th

is regard. We believe that the record,
as it sits bef

ore us, su pports a finding by

a preponderance of the evidenc e that the defendant violated the law, w

hich wasin contra

vention of

his Davids on County

probatio nary

terms.
That said, we are not c onvinced

that the r ecord su pports by a preponde

rance of the evidence either th at the defendant failed to report to his probation officer or that he failed to pay

the required fees. With respect to the failure to report, the state and the defense pr esented conflicting evidence. The defendant offered a plausible e xplanation for not reporting to Da vidson Cou nty Probation Office

r James Fo ster, and the state did not demonstrate that

the defendant’s explanation
was unreaso nable. T

he state did not pre sent e vid ence via “Mr. Sea

rs,” the Davidson

County probation office

r with whom the court instructed the defendant to meet before leaving court on

the day of his sentencing. Moreover, the lower c ourt failed to make any findings regarding the3 As stat ed previous ly, the s entences were im posed consecutively to a Putnam County sentence, whi ch the

defendant had not completed serving.
-4- comparative mer its of the credibility of Mr. F oster and the defendant relative to their conflicting testimony about the matter.

With respect to the failure to p ay requir ed fees, the state established that the defendant had done nothing to complete therequirements of his Davidson County pr obationary

sentences, but it did not establish that he was required to begin pay ing fe es before actual commencement of the sentenc es. 3 The record will not support a finding that the d efenda nt violate d probati on by

failing to pay fees.

Based

upon the defendant’s violationof the law by “jumping bail,” we affirm the lower co urt’s re vocation of his pro

bationar y se ntences

.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE