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

Briefs A ugust 20, 2002
STATE OF TENN ESSEE v. JASON FISH ER
Direct Appeal from the Circuit Court for Blount County No. C-11447 D. Kelly Thomas, Jr., Judge

No. E2002-00335-CCA-R3-CD October 24, 2002

The defendant pleaded guilty to six counts of forg er y and was sentenced as a Range I, standard offender to an effective term of two y ears, which was suspended and ordere d to be served o n probation. Various probation violation warran ts were filed, alleging that the de fendant had failed to comply with the conditions of probation and, in general, was uncoo perati ve wit h tho se in c harge of supervis ing his se

ntence. Followin g a hea

ring on t he fourt h such warrant, thetrial court revoked the defendant’s probation and ordered him to serve the sentence originally

imposed. The defendant appealed. Upon review of the rec ord, we detect no abuse of the trial court’s discretion and affirm the judg ment. Tenn. R. App.P. 3; Judg ment of t he Circui t Court is

Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which G ARY R. W AD E , P.J., and R OBER T W. W EDEMEYER , J., joined.
Mack Garner, District Public Defender, Ma ryville, Tennessee, for the appellant, Jason Fisher.

Paul G. Summers , Attorne y General and Repor

ter; Pete r M. Coug

hlan, Ass istant Atto

rney Genera l; Michael L. Fly

nn, District Attorney Gene ral; and Edward

P. Bailey, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.
OPINION

On April 5, 19 99, the B lount Count y Grand Jury charged the defenda

nt, Jason Thomas Fisher, with six counts of forgery

. See Tenn. Code Ann. § 39-14-114 (1997). The charge s involve d three checks tot aling $4 ,500, dra

wn on the a

ccount of O.J. Frisb ie and ca shed at F irst Tenness ee Ban

k. Four c ounts wer

e Class E f

elonies; t wo countswere Cla ss D felon ies.

On J uly 19 , 1999, the defendant entered guilty pleas to all six charges, and a sentencing hearing was scheduled for September 13, 1999. The record on appeal does not include
a transcript of the sentencing hearing . From the presentence investigation re port, which is part

of-2-

the app ella te re co rd , w e g le an th at at th e t im e o f s en te nc in g, th e d ef en da nt wa s a he al th y, t we nt yyear- old male. He was earning $7.00 per hour a t a temporary

factory job. The defendant reported owning a p ickup truck, living with his parents, and having no debt. He ha d been convicted previous ly

of reck less driving when

he was e ightee n ye ars old, r

ecklessendangerment when he was nineteen years old, and bad check charge s earlie r in the y ear. A d rug scr een of th e defendant in August 1999 was positive for marijuana use.

According to the judgments in the record, whi ch were entered on Se ptember 23, 1999, the defendant was sentenced as a Rang e I, standard of fender to one ye ar for e ach of th e Class E felonies and two yea

rs for each

Cla ss D felony. The judg ments reflect that each sentence wa s suspendedand that the defendant was placed on probation to be e ffective as of the date of sente ncing. As part of

his sentences, the defendant was order ed to perform

community service for Goodwill Industries. On Decembe r 1, 1999, the community service s coor dinator pr epared a violation warrant citing the defendant’s f ailure to perform

any community

service and to contact the community service c oordinator.

Shortly thereafter, in January

2000, a probation violation warrant was filed alleging the de fe nd an t’ s f ai lu re to su pp ly p ro of of em pl oym en t, to pe rfor m a ny communi ty service, to pa y any fees, costs, or res titution, and to abstain from drug use. At a hearing on May 22, 2000, the defendant stipulated to the facts underly ing the violation warrant. Th e t rial court found that the defendant had violatedthe termsof his pro bation, bu

t it did not revoke the defendant’s probation. Instead, the trial court amended the condition s of the defendant’s probation to include the require ment that t

he defe ndant ent er and su ccessf

ully complete a drug court pr ogram. Eight da ys later, on May 30, 2000, the trial court issued a capias for the defendant’ s arrest because he had

failed to appear for the drug c ourt. Therea fter, the record reflec ts that multi

ple capiases were issued with corresponding court orders for the defendant’s incarcer ation in 24-hour blocks of time. On October 30, 2000, the defendant was released from the Blount County Jail and ordered to report to a halfway

house in Oak Ridge. After further violations of the dr ug court program rules, the defendant wa s “dismissed” from the program on January 16, 2001.

The failure to complete t he drug court progra m violated the conditions of the defendant’s probation, and on January 17, 2001 a violation warrant was filed. The defenda nt was arrested on that warrant after

which he secure d his release on bond. On February 5, 2001, the trial court conducted a hear

ing. The defenda nt stipulat

ed to the p

robatio n violation. The trial court ordered the defendant to serve 90 d ays in the Bl ount County Jail and to se

rve the b alance

of his sentence on community c orrections.

The defendant ’s recalcitrant behavior did not abate, and on Ma y 30, 2001, a community

corrections violation warrant was issued. The defendant

wa s a rr es te d t he fo ll ow in g d ay, and he arra

nged f or immedia

te relea se on bond. A hearing on the violation was held on June 29, 2001. As befor

e, the defendant stipulated t o the violation. This time, the trial court revoked the defendant’s probation and ordered him to serve the original sentence minus 104 day s of jail c redit.-3- Lessthan two mont hs later, the Tennessee Board of Proba tion and Parole issued a “Probation Certificate” releasing the def endant e ffectiv e Augus t 24, 2001, with cond itions. Approximat

ely four months later, the defendant garne red his fourth probation violation w arrant

. A hearing was held on February 11, 2002, for which a transcript was prepared and filed with the record on appea l.

At the hearing, Teresa Captain, a probation officer, testified that she was resp onsible for supervising the release of the defe ndant. After

report ing t o Ms. Captain in September and October, the defendant, without explanation, failed to repor t to her fo r the next f

our months . Ms. Captain testified that

the defendant made only

one payment towa

rd his supervision fees and that she could only

verify that he ma

de a sing le pay

ment of $5 0 on cour

t costs an d fines.

The defendant testified that after he was re leased on August 24, he lived for a short time with his father, but then he moved in with a female friend. He said that just befo re Christ mas, they were evicted and that since that time he has had no place to live. The defendant was not at that time working; he testified that he had been working at Food City but that he quit that job for better employment

“that didn’t come thr ough.” The def endant’ s explanat

ion for no t contac ting his probation supervisor was that he “wasn’t around a phone.” He insiste d that if r elease d from jai l, his father would allow him to move in until the defendant could find a job and support himself. When askedwhy the court

should con

tinue his p

robation , the def

endant r esponde d, “This time, I know that it’s not kidding around and I have learned this time. . . . AndI’ve learne d that, y

ou know, I

need to do what needs to be done of me and asked of me rather than do what I

want to do.” The defendant asked tha t the tria l court c onsider s ome form o f split con finemen t.
At the conclusion of the hearing, the trial court found that ba sed on the record up to that point, the likelihood of rehabilitation was “n on -e xi st en t. ” A cc or di ng ly, the trial court revoked the defenda

nt’s prob ation but s pecifie d tha t the defendant would be eligible for work re lease. Moreover, the trial court offered the defenda ntan incen

tive: “[Y]ou ’ll have

an oppor tunity to apply to – get a job, apply for w ork release, and then if y ou can work and follow the jail rules for a period of time, then I’ll be glad to ente rtain a – listen to a motion to get back out and go back on proba tion.” This appeal followed.

Our review requires us to visit a familiar corner of the law. When a trial court finds by a preponderance o f the evidence that a defendant has violated the conditions of his or her probation, the trial court is authorized to revoke probation. Tenn. Code Ann. § 40-35-311(e) (Supp. 2001). When probatio n is revok ed, “the origina l judgme nt so rend ered by the trial judge sh all be in full force and effect from the da te of the revocation of such suspension.” Id . § 40-35-310 (1997).

Whether to revoke probatio n is a

decision committed to the sound discretion of the trial judge. State v. M

itchell , 810 S.W.2d 7 33, 735 (T enn. Cr im. App. 1991). The trial court’s revocation determin ation will b e upheld on appeal unless there has been an abuse of discretion. State
v. Harkins , 811 S.W.2d 7 9, 82 (Te nn. 1991) . For the

re to be a n abuse of discretion, the record

must-4-

be void of any substantial evidence supp orting the trial court’s decision that a violation of the probation conditions occurred. Id. ; State v. Grear , 568 S.W.2d 285, 286 (Tenn. 1978). Evidence of a probation violation is sufficient if it allows the trial court to makea conscientious and intelligent judgment. State v. Milton , 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).

The defendan t in this case co ncedes t hat he ha s violated

the condi

tions of his probation not once, but on multiple occasions resulting in four revocation war rants. The question becomes w hether the trial court was confronted with substantial evidence supporting the decision to revoke the defendant’s probation and order service of the original sente nce. In our view, the trial court made a conscientious and intelligent judgment. The trial c ourt’s patience with the defendant far exceeded what the law requires. Even so, the trial court continued to reach out to the defendant

–to persua

de him to ta

ke respo nsibility

for his a ctio ns and to acce

pt the con sequenc es of his behavior. We find no indication in the record that the trial court abused its discretion in revoking the defendant’s probation and ordering him into custody to serve his sentence. Accordingly , the judgment of the trial court is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE