FILED

April 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1998 SESSION

STATE OF TENNESSEE, )

) NO. 02C01-9709-CC-00336

Appellee, )

) MADISON COUNTY

VS. )

) HON. FRANKLIN MURCHISON,

LARRY CUNNINGHAM, ) JUDGE

)

Appellant. ) (Probation Revocation)

FOR THE APPELLANT:

GEORGE MORTON GOOGE

District Public Defender

MICHAEL RASNAKE (at hearing)

Assistant Public Defender

227 W. Baltimore Street

Jackson, TN 38301-6137

JOHN E. HERBISON (on appeal)

2016 Eighth Avenue South

Nashville, TN 37204-2202

FOR THE APPELLEE:

JOHN KNOX WALKUP

Attorney General and Reporter

JANIS L. TURNER

Assistant Attorney General

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0493

JAMES G. WOODALL

District Attorney General

LAWRENCE E. NICOLA

Assistant District Attorney General

225 Martin Luther King, Jr. Dr.

P.O. Box 2825

Jackson, TN 38302-2825

OPINION FILED: 

REVERSED AND REMANDED

JOE G. RILEY,

JUDGE
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OPINION

The defendant, Larry Cunningham, appeals the Madison County Circuit

Court’s order affirming the revocation of his probation by the Municipal Court of

Jackson, Tennessee. The defendant contends the trial court erred in not hearing

his appeal from municipal court de novo. We agree with the defendant, reverse

the revocation, and remand to the trial court to conduct a de novo review.

PROCEDURAL HISTORY

The defendant pled guilty in the Municipal Court of Jackson, Tennessee,

to one (1) count of assault and one (1) count of resisting arrest. He received

consecutive sentences of eleven (11) months, twenty-nine (29) days, and was

fined $100 for each offense. The sentences were suspended except for five (5)

days on the resisting arrest charge.

The defendant’s probation officer subsequently filed a violation report, and

the municipal court revoked the defendant’s probation. The defendant timely

filed an appeal to the Circuit Court, which affirmed the revocation. The Circuit

Court specifically declined to consider the revocation de novo, but rather utilized

an abuse of discretion standard. The Circuit Court order “affirmed” the

revocation finding that the municipal court “did not abuse its discretion nor act

arbitrarily or capriciously by terminating the defendant’s probation . . .”

ANALYSIS

The defendant contends the Circuit Court denied him his right to a de

novo hearing. Although the state concedes the defendant was entitled to a de

novo hearing, it contends the defendant in fact received a de novo hearing.
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When a defendant has been arrested and charged with a probation

violation, he has a right to a hearing where counsel may represent him and

introduce testimony on his behalf. Tenn. Code Ann. § 40-35-311(b). If the court

finds by a preponderance of the evidence that the defendant violated the

conditions of his probation and reinstates his sentence, the defendant has the

right to appeal the judgment. Tenn. Code Ann. § 40-35-311(d). The court to

which the defendant appeals is determined by which court heard the revocation

proceeding. When a defendant is dissatisfied with a judgment received in a

municipal court, as is this defendant, the defendant may appeal the judgment to

the Circuit Court subject to the same terms and restrictions as an appeal from

general sessions court. Tenn. Code Ann. § 27-5-102. Appeals from general

sessions court “shall be heard de novo in the circuit court.” Tenn. Code Ann. §

27-5-108(c).

The Municipal Court of Jackson has state criminal jurisdiction. An appeal

from that court for the revocation of a suspended sentence goes to the Circuit

Court for a de novo hearing. State v. Parrish, 598 S.W.2d 840, 841 (Tenn. Crim.

App. 1980); State v. Gerald Bates, C.C.A. No. 01C01-9101-CR-00006, Sumner

County (Tenn. Crim. App. filed June 28, 1991, at Nashville). In a de novo

review, “the parties are entitled to a reexamination of the whole matter of law and

fact.” Richards v. Taylor, 926 S.W.2d 569, 570 (Tenn. App. 1996). The Circuit

Court is not concerned with what took place in the lower court; the matter is tried

as if no other hearing had occurred. Hohenberg Bros. Co. v. Missouri Pac. R.R.

Co., 586 S.W.2d 117, 119 (Tenn. App. 1979).

A de novo hearing encompasses more than just the presentation of proof. 

The court must try the matter and render judgment as if no judgment had

previously been rendered. It is, therefore, incumbent upon the Circuit Court

hearing a probation revocation appeal to make an independent judgment

following the presentation of proof. This would include a consideration of the
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various sentencing options if there is a finding that the defendant violated the

terms and conditions of probation. Merely reviewing the judgment of the

municipal court for abuse of discretion does not satisfy the requirements of the

statute.

The written order of the Circuit Court reflects that “grounds exist and were

proven which demonstrate the defendant violated the terms and conditions of his

Municipal Court probation . . .” The state contends this satisfies the requirement

for a de novo hearing. However, our reading of the hearing transcript clearly

reveals that the Circuit Court did not rule upon the matter as if no hearing had

occurred in the municipal court. The trial court clearly applied an abuse of

discretion standard and “affirmed” the revocation by the municipal court.

 

Accordingly, we REVERSE AND REMAND this case to the Circuit Court

of Madison County for a de novo probation revocation hearing.

_________________________

JOE G. RILEY, JUDGE

CONCUR:

_________________________

DAVID G. HAYES, JUDGE

_________________________

WILLIAM M. BARKER, JUDGE