# FILED
April 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL 1998 SESSION

STATE OF TENN ESSEE, ) ) 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 (o n appeal) 2016 Eighth Avenue South Nashville, TN 37204-2202 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter JANIS L. TUR NER Assistant Attorney Gener al Cordell Hull Buildi ng, 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 FI LED:

REVERSED AND

REMANDED

JOE G. RILEY, JUDGE2 OPINION
The defendant, Larry Cunningham, appea ls the Madison County Circuit Court’s order affirming the revocation of his probati on by the Municipal Cour t of Jackson, Tennessee. The defendant contends the trial court erred in n ot 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 arr est. He received consecutive sentences of elev en (11) months, twenty- nine (29) days, and w as fined $100 for each offense. The sentences wer e suspended except for five ( 5) days on the resisting

arrest charge.
The defendant’s probation officer subsequently filed a violati on report, and the municipal court revoked the defendant’s probat ion. The defendant timely filed an appeal to the Circuit Court, which affirmed the revocation. T he Circuit Court specifically dec

lined to consider the rev ocation 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 c

apriciously by te rminating the defendant’s probati on . . .”

ANAL YSIS

The defendant contends the Circuit C ourt denied him his right to a de
novo hearing. Although the s tate concedes the defendant was entitled to a de
novo hearing, it contends the defendant in fact received a de novo hearing.3 When a defendant has been arrested and charged with a probation violation, he has a rig ht to a hearing where c ounsel 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 ev idence that the defendant violated the conditions of his probation and r einstates 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 d etermined by which cou rt heard the revocation proceeding. When a defendant is dissatisfied w ith a judgment received in a municipal court, as is thi s defendant, the defendant may appeal the judg ment to the Circuit Court subj ect to the same terms and restr ictions as an appeal from general sessions court . Tenn. Code Ann. § 27-5-102. Appeal s from general sessions court “shall be heard de novo in the circuit court.”

Tenn. Code Ann. § 27-5-108(c).
The Municipal Court of Jackso n has state criminal juri sdiction. An appeal from that court for the revocation of a suspend ed 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-C R-00006, Sumner County (Tenn. Crim. App. fil ed June 28, 1991, at Nashvil le). In a de novo review, “the part ies are entitled to a reex amination of the whole matter of law and fact.” Richards v. Taylor , 926 S.W.2d 569, 57 0 (Tenn. App. 1996). The Circuit Court is not concerned w ith what took place in t he 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, 11 9 (Tenn. App. 1979).

A de novo

hearing encompasses more than j ust 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 rev ocation appeal to make an independent j udgment following the presentati on of proof. This would include a consideration of the4

various sentencing opt ions if there is a finding th at the defendant violated the terms and conditions of probation. Merely review ing the judgment of the municipal court for abuse of disc retion does not satisfy the r equirements of the statute.
The written order of the Circuit Court reflects that “grounds exist and were proven which demonstrate the defendant violated the term s and conditions of his Municipal Court probati on . . .” The state contends this satisfies the requirement for a de novo

hearing. However, our reading of the hearing transcript clearly reveals that the Circ

uit Court did not rule upon the matter as if no hearing had occurred in the municipal c ourt. The trial court cl early 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 revoca tion hearing.

_________________________ JOE G. RILEY, JUDGE

CONCUR:

_________________________ DAVID G. HA

YES, JUDGE

_________________________ WILLIAM M. B

ARKER, JUDG E