IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 22, 2003

STATE OF TENNESSEE v. BARRY LEE ARMISTEAD

Direct Appeal from the Criminal Court for Davidson County

No. 99-D-2724 Seth Norman, Judge

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

Barry L. Armistead appeals from the Davidson County Criminal Court’s revocation of his

probationary sentences. He claims that the lower court erred in revoking probation because the state

failed to prove a violation by a preponderance of the evidence. Because we disagree, we affirm the

lower court’s judgment.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOE G. RILEY and

NORMA MCGEE OGLE, JJ., joined.

William A. Lane, Murfreesboro, Tennessee, for the Appellant, Barry Lee Armistead.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General;

Victor S. Johnson, District Attorney General; and Sarah Davis, Assistant District Attorney General,

for the Appellee, State of Tennessee.

OPINION

Upon his guilty pleas, the defendant was convicted of two counts of aggravated

assault. Pursuant to the plea agreement, he was sentenced to two terms of four years each, to be

served consecutively to each other and consecutively to the sentence for a prior conviction in Putnam

County. The sentences were to be served on probation.

Before the commencement of the defendant’s Davidson County sentences, his

Davidson County probation officer procured a violation warrant, in which it was alleged that the
1

Apparently, the original violation warrant contained a clerical error in that it alleged that the defendant violated

probation on a date earlier than the date upon which the defendant’s sentences were imposed. The record reflects that

the defendant made a timely objection to the irregularity, upon which the court dismissed the warrant and indicated its

willingness to issue a corrected warrant upon the state’s preparation of same. The affidavit that is in the record contains

the clerical error mentioned above, but the warrant itself appears in order. We presume by the defendant’s silence at the

hearing below and on appeal that he has no quibble with the warrant in its present form and that he does not contest that

he received adequate notice of the factual basis upon which the state sought revocation.

2

Only some of these grounds are actually alleged in the violation warrant that is before us. 

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defendant violated probation by violating the law, failing to report to his probation officer, and

failing to pay the required fees.1

The transcript of the defendant’s guilty plea hearing is contained in the appellate

record. It reflects an exchange between defense counsel and the court concerning whether the

defendant could serve his Davidson County sentences through the probation office in Putnam

County, which is the defendant’s home. When defense counsel inquired whether the defendant

should report to DavidsonCountyprobation authorities before the defendant’s cases were transferred

to Putnam County, the court instructed that the defendant should see “Mr. Sears” before leaving

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

At the revocation hearing, the state presented 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 that the defendant had been arrested on theft charges in

Wilson County. Foster claimed that he pursued revocation because the defendant had violated the

terms of probation by incurring a new arrest, failing to report the new arrest, failing to provide proof

of employment, changing his residence without notifying Foster, failing to report, and failing to stay

away from the victim.2

The defendant took the stand to oppose revocation. He testified that after his

Davidson County plea hearing, he was taken into a hallway where he filled out paperwork 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 was that he would be supervised

by Putnam County probation officials for the Davidson County sentences. He was unaware that he

had been assigned a Davidson County probation officer. The defendant testified that the alleged

Wilson County theft offense occurred in 1997 or 1998, which was prior to the Davidson County

offenses. The Wilson County theft charge was still unresolved at the time he entered his guilty pleas

in Davidson County in 2000. The defendant conceded that after the Davidson County sentences

were imposed, he “jumped bail” in Wilson County in 2001 and was arrested. The defendant likewise

conceded that he was presently serving a Putnam County sentence in the Department of Correction

due to a “technical violation” of probation. 

The standard of review upon appeal of an order revoking probation is the abuse of

discretion standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). For an abuse of discretion
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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 occurred. Id. at 82;

State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The trial court is required only to find

that the violation of probation occurred by a preponderance of the evidence. 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 and cause the defendant to commence the

execution of the judgment as originally entered." Id. Furthermore, when probation is revoked, "the

original judgment so rendered by the trial judge shall be in full force and effect from the date of the

revocation of such suspension." Id. § 40-35-310 (1997). The trial judge retains the discretionary

authority to order the defendant (1) to serve his sentence in incarceration; (2) to serve the

probationary term, beginning anew; or (3) to serve a probationary period that is extended for up to

an additional two years. State v. Hunter, 1 S.W.3d 643 (Tenn. 1999). The determination of the

proper consequence embodies a separate exercise of discretion from the initial finding that a

violation has occurred. See id. at 647; State v. Duke, 902 S.W.2d 424, 427 (Tenn. 1995); State v.

Ricio L. Conner, No. 02C01-9807-CR-00201 (Tenn. Crim. App., Jackson, Oct. 31, 1999).

In this case, the defendant challenges only the propriety of the revocation, not the

consequence imposed as a result. Therefore, we concern ourselves solely with the adequacy of the

basis for the revocation. In that regard, the trial court did not make findings about its basis for the

revocation. Thus, we will consider whether the state demonstrated by a preponderance of the

evidence that the defendant violated probation in any of the three ways alleged 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 arrested for this reason. Although the factual underpinnings of this misdeed are

noticably absent from the record, we do not believe it is necessary for us to know the precise nature

of the offense where the defendant admits wrongdoing. Failure to appear, or “bail jumping” as it is

commonly called, is a criminal offense. See Tenn. Code Ann. § 39-16-609 (Supp. 2002). The

defendant did not make any claim that the arrest was unwarranted based upon the conduct preceding

it, and there is no indication in the record of any mistake in this regard. We believe that the record,

as it sits before us, supports a finding by a preponderance of the evidence that the defendant violated

the law, which was in contravention of his Davidson County probationary terms.

That said, we are not convinced that the record supports by a preponderance of the

evidence either that 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 presented conflicting

evidence. The defendant offered a plausible explanation for not reporting to Davidson County

Probation Officer James Foster, and the state did not demonstrate that the defendant’s explanation

was unreasonable. The state did not present evidence via “Mr. Sears,” the Davidson County

probation officer with whom the court instructed the defendant to meet before leaving court on the

day of his sentencing. Moreover, the lower court failed to make any findings regarding the
3

As stated previously, the sentences were imposed consecutively to a Putnam County sentence, which the

defendant had not completed serving.

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comparative merits of the credibility of Mr. Foster and the defendant relative to their conflicting

testimony about the matter. 

With respect to the failure to pay required fees, the state established that the defendant

had done nothing to complete the requirements of his Davidson County probationary sentences, but

it did not establish that he was required to begin paying fees before actual commencement of the

sentences.3

 The record will not support a finding that the defendant violated probation by failing to

pay fees.

Based upon the defendant’s violation of the law by “jumping bail,” we affirm the

lower court’s revocation of his probationary sentences.

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE