FILED

June 10, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

MARCH SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9806-CC-00177

)

Appellee, )

) MADISON COUNTY

V. ) 

)

) HON. ROY B. MORGAN, JR., JUDGE 

HARRY LEE GOFF, JR., )

)

Appellant. ) (VEHICLE BURGLARY) 

FOR THE APPELLANT: FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR. JOHN KNOX WALKUP

113 North Court Square Attorney General & Reporter

P.O. Box 26 

Waverly, TN 37185 GEORGIA BLYTHE FELNER

(On Appeal Only) Assistant Attorney General

2nd Floor, Cordell Hull Building

GEORGE MORTON GOOGE 425 Fifth Avenue North 

District Public Defender Nashville, TN 37243

STEPHEN P. SPRACHER JAMES G. WOODALL 

Assistant Public Defender District Attorney General 

227 West Baltimore Street

Jackson, TN 38301 JAMES W. THOMPSON

(At Trial) Assistant District Attorney General

P.O. Box 2825 

Jackson, TN 38302 

OPINION FILED ________________________

JUDG MENT AFFIRMED; 

REMANDED TO TRIAL COURT

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Harry Lee Goff, Jr., appeals as of right following the

revocation of his probation by the Circuit Court of Madison County. Defendant was

indicted for vehicular burglary and theft of property with a value of less than $500.00.

He pled nolo contendere to vehicular burglary and the theft charge was dismissed

in exchange for a two (2) year sentence subject to judicial diversion under

Tennessee Code Annotated section 40-35-313. Therefore, no judgment of guilt was

entered. Under the terms of this sentence, Defendant was ordered to perform two

hundred (200) hours of public service work, pay restitution in the amount of $80.00,

and was ordered to comply with the standard provisions of probation under

supervision of the Community Corrections program. As a result of alleged violations

of the terms of his probation, a hearing was held before the trial court on May 12,

1998. Defendant’s probation was revoked and he was taken into custody to serve

his sentence. The Defendant contends that the trial court erred in ordering him to

serve the rem ainder of his sentence in the Madison County Jail or workhouse after

his probation was revoked. W e affirm the judgment of the trial court, but remand for

proceedings consistent with this opinion.

At the revocation hearing, Janey McNatt testified that Defendant was placed

in the program in May 1997 to serve a two (2) year sentence on probation. On

December 2, 1997, Defendant was convicted of assault. Other charges of

contributing to the delinquency of a minor and encouraging those minors to shoplift

were pending at the time of the revocation hearing. McNatt stated that the

Defendant admitted to consuming alcohol while he was in Community Corrections,
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which she explained was specifically in violation of the terms of that probation. In

addition, when Defendant was arrested for the assault, he failed to notify that arrest

to his Com munity Corrections officer, another violation of his probation. Defendant

did not provide evidence of his employment during this probation period, except for

a brief four (4) or five (5) week period. Finally, he failed to report to his probation

officer and to pay his fees.

The Defendant testified at the hearing and admitted that he did not personally

inform his probation officer of his arrest, although Defendant stated he did leave a

message on the officer’s answering machine. He further admitted that he did not

have steady employment and was convicted of assault. Defendant stated that the

probation officer testified truthfully regarding his violations of the terms of probation.

The trial court ordered Defendant’s sentence of probation to be revoked, with

the Defendant to serve the remainder of his two (2) year sentence in the Madison

County Jail or Workhouse. The trial court entered a “Revocation Order,” however

no judgment of guilt was entered. Tennessee Code Annotated section 40-35-313

states that “[u]pon violation of a condition of the probation, the court may enter an

adjudication of guilt and proceed as otherwise provided.” 

Because the trial court failed to enter a judgment of Defendant’s guilt, this

case must be remanded to enter the judgment reflecting the conviction and sentence

according to the provisions of Tennessee Code Annotated section 40-35-313. 

The order of the trial court revoking the probation pursuant to judicial diversion

and requiring Defendant to serve a two (2) year sentence in the Madison County Jail
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or Workhouse is affirmed. However, this case is remanded to the trial court to enter

the standard judgment of conviction. 

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

GARY R. WADE, Presiding Judge

___________________________________

JOSEPH M. TIPTON, Judge