# FILED June 10, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE 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 HARR Y LEE GOF F, JR., ) ) Appe llant. ) (VEHICL E BUR GLARY )
FOR THE APPELLANT : FOR THE APPELLEE : CLIFFORD K.McGOWN, JR. JOHN KNOX WALKUP 113 North Court Square Attorney General& Reporter P.O. Box 26 Wa verly, TN 37185 GEORGIA BLYTHE FELNER (On App eal Only) Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding GEORGE MORTON GOOGE 425 Fifth Avenue North Distri ct Public

Defender Nashvill e, TN 37243 STEPHEN P. SPRACHER JAMES G. WOODALL Assistant Public Defender District Attorn ey Ge neral 227 West Baltimore Street Jackson, TN 38301 JAMES W.THOMPSON (At Tr ial) Assistant Distri ct Attorney General P.O. Box 2825 Jackson, TN 38302

OPINION FILED ________________________ JUDG MEN T AFF IRME D; REMANDED TO TRIA L COURT THOMAS T. WOODALL, J UDGE-2- 

# OPINION The Defendant, Harr y Lee Goff, J r., appeal s as of ri ght foll ow ing the revocati on of his probation by th e Circuit Court of Madison C ounty. Defendant was indicted for vehi cular

burglary

and theft of propert

y with avalue of l ess than $500.00. He pled nolo contendere to vehi cular burgl ary and thetheft cha rge was dismissed i n ex change for a t wo (2) year s entence subject to judi cial di version under Tennessee Code Annotated secti on 40-35-313. Therefore, no j udgment of guil t was entered. Under the terms of this se ntence, De fendant was ordered to pe rform two hundred (200) hours of public ser

vice work, pay resti tution i n the amount of $80.00, a nd was ordered to comply with t he standard prov isions of probation u nde r supervisi on of the Community Corrections program. As a result of alleged violat ions of the terms of hi s proba tion, a hearing was hel d before the t rial cour t on May 12, 1998. Defenda nt’s probation wa s revoked an d he was tak en into custod y to serve his sentence. The Defendant conten ds that the trial court erre d in orde ring him to serve the rem ainde r of his s enten ce in the Madison County Jail or workhouse after his probation wa s revoked. W e affirm the judgment of the tri al court, but remand for proceedings consi stent wit h this opi nion.
At the revocat ion hearing, Janey McNatt testifi ed that Defendant was placed in the program in May 1997 to serve a two (2) year sentence on p robation . On December 2, 1997, D efe ndant was convi cted of assaul t. Other c harges of contribut ing to the delin quenc y of a min or and e ncoura ging thos e mino rs to shoplift were pendin g at t he tim e of the rev ocation heari ng. McNatt stated that t he Defendant admitted to consuming alcohol while he was in Community Corrections,-3-

which she explai ned was specifi cally i n violat ion of theterms of that proba t ion. In addition, when Defendant was arr ested for

the assault , he fail ed to notify t hat arrest to his Com munity Corrections o fficer, another vi olation of his prob ation. Defendant did not provid e evide nce o f his employment during this probation period, except for a brief f our (4) or five (5) we ek period. Finally , he fail ed to report to his pr

obation officer and to pay hi s fees.
The Defe ndan t testified at the h earing and a dmitte d that h e did n ot pers onally inform his proba tion officer of h is arrest, although D efendant state d he did leave a message on the officer’s answ erin g ma chine. He fur ther admitted that he di d not have steady

emplo ymen t and wa s convicte d of assa ult. Defendant stated that the probation officer

testified trut hfully

regarding hi s violat ions of t he terms of probat ion.
The trial court ordered Defendant ’s sentence of probation to be revo ked, with the Defendant to ser

ve the remainder

of his t wo (2) year s entence in t he Madison Coun ty Jail or

Workhouse. The trialcourt enter ed a “Revocati on Order,” however no jud gme n t of guilt was entered. Tennessee Code Annotated sect ion 40-35-313 statesthat “[u]pon violation of a c onditi on of the probati on, the court may enter an adjudication of gu ilt and proceed a s otherwise pro vided.”
Because the trial c ourt faile d to en ter a jud gme nt of D efend ant’s g uilt, this case must b e rema nded to enter the judgment reflecti ng the conviction and sentence accord ing to the p rovisions o f Tenn essee Code Annota ted sectio n 40-35 -313.
The order of t he trialcourt revoking t he probation pu rsuant to j udicialdiversi on and requiri ng Defe ndan t to serve a two (2 ) year s enten ce in the Ma dison Coun ty Jail-4-

or Wo rkhouse is affirm ed. However, thi s case is remanded to the trialcourt to ent er the stand ard judg ment o f conviction .

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JOSEPH M. TIPTON, Judge