### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Ma y 16, 200 6

STATE OF TENNESS EE v . RITA LYNN NEFF

Appeal f romthe Cr im inal Cou rt for Sulli van Coun ty Nos. S38,504, S39,988, S 39,989, S40,798 R. Jerr y Beck, Judge

No. E2005-01622-CC A-R3- CD - F iled Jun e 20, 2006

The De fenda nt, Rita L y nn Nef f, appe als from the or der of the trial court revoking her pr obation and

or de ri ng that he r e ff

e c tiv e e ig ht- y e ar s e nte nc e be se rv e d in the De pa rt me nt of Cor re c tio n. On app e a l, the Def endant a rg ues that the trial c ourt abused its discretion by revoking her pr obation and orde ring that he r s e nte nc e s b e se rv e d in c on fi ne me nt. We a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which N OR MA M C G EE O G LE and R OB E R T W. W EDEMEYER , J J ., joined.

J oseph F. Har

rison, Assistant Publ ic Def ender , Bountville, Tenne ssee, f or the a ppellant, Rita L y nn Nef f.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; B lin d Ak rawi , Ass ist a nt A tto rn e y Ge ne ra l; Gr e e le y Wel ls, Di stric t A tto rn e y Ge ne ra l; a ndJame s G oo dw in, As sis ta nt D ist ri c t A tto rn e y

Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

On Oc tob e r 2 7, 19 98 , p ur su a nt t o a ple a a g re e me nt, the De fe nd a nt e nte re d g uil ty ple a s to

sever al cha

rg es: (1) five counts of fraudulently obtaining f ood coupons, ea ch a Class E f elony and

e a c h r e s u l t i n g i n a

t w o

- ye ar s e n t e n c e ; ( 2 ) o n e c o u n to f u t t e r i n g a f

o r g e d i n s t ru m e n t , a C l a s s D f e l o n y,

re su lti ng in a

se nte nc e of

fo ur y e ars ; (3) on e c ou nt of po sse ssi on of mari jua na fo r r e sa le , a

Cla ss D felony , resu l t i n g in a sentenc e of two y ear s; (4) one c ount of possession of drug para pherna lia, a Class A misdemeanor, resulting in a sentence of eleve n months and twenty -nine da y s; and (5) one

c o u n t o f h in d e r in g a s e c u r e d c r e d it o r , a Cl a s s E f e lo n y , r e s u ltin g in a s e n te n c e o f tw o y ear s. The four- y ear sentenc e and three of the two-y ear sentenc es we re or dere d to be serve d consec utively for an ef fec tive sentenc e of te n y ear s to be served on intensive probation. The Def endant wa s order ed to pay a total of four thousand, seven hundr ed eig hty -three dollars and e ighty -one c ents in restitution-2-

and wa s order ed to per form twelve hundred hours of communi ty service work. She was fine d seven tho us a nd , s e ve n h un dr e d andfi ft y do lla rs , b ut the fi ne s w e re su sp e nd e d b y the tr ia l c ou rt

.

On Marc h 12, 2001, a probation violation warrant wa s issued and serve d upon the Def endant alleg ing tha t she had fa iled to report to her probation off

icer as orde red, failed to pay

her supe rvisory fee s an d failed to make restitution pay ments as orde red. B y order enter ed Jul y

23, 2001, the trial court found that the Def

endant ha d violated her

probation by

failing to report to her

probation off

icer as orde red. The court orde red tha t probation for one of her two-y ear sentenc es be r evoked a nd that sh e se rv e that se nte nc e in j a il. F oll ow ing se rv ic e of thi s sen te nc e , th e ba la nc e of he r e ff e c tiv e e ig hty ear sentenc e wa s to be serve d on intensive probation. B y order enter ed on June 28, 2002, the Def endant wa s transfe rre d from intensive probation to reg ular probation.

On May 30, 2003, a probation violation warra nt was issued ag ainst the Def endant a lleg ing that she had a g ain vi olated the conditions of her probation by not reporting to her probation off

icer as instructed, by

not maintaining a

lawful oc cupation, by not pe rfor ming community service work as orde red, a nd by

not pay ing r estitution as ordere d. This war ra n t wa s n o t serve d upon the Def endant until Fe bruary

9, 2005. On Marc h 17, 2 0 0 5
, an ad ditional probation violation warra nt was issued a lleg ing tha t the Def endant ha d failed to re port to her pr obation office r as or dere d from approximately

May 8, 2003 until March 3, 2005. This probation vi olation war rant also alleg ed that the Def endant’ s where abouts wer e unknown during this period of time. This warr ant was se rved on the Def endant on Ma y

18, 2005.

On J une 23, 2005, a pr obati on violation hearing was c onducted upon the two pr obation violation warra nts. At this hearing, Def endant’ s attorney stated that the Def endant pled g uiltyto the

c ha rg e s o f v iol a tin g he r p ro ba tio n b ut int e nd e d to of fe r p ro of of mit ig a tio n. I n r e sp on se to questioning f

rom the court, the Def

endant stipulated and ag ree d that she had violated the terms of her pr obation as set forth in the warrants. At the conclusion of the hearing, the trial court f ound “no mitigation.” By order enter ed June 27, 2005, the trial court found tha t the Def endant ha d violated the terms of he r proba tion by failing to work at a

lawful oc cupation, fa iling to re port (absc onding)
, failing to pay

restitution, and failing to complete communityservice work. The court orde red tha t the Def endant ’s probation be r evoked a nd her e ffe ctive eig ht-y ear sentenc e be se rved in the Depa rtment of Corre ction. I t is from the orde r of the tr ial court re voking he r proba tion and ordering he r s e nte nc e s to be se rv e d in the De pa rt me nt o f C or

re c tio n th a t th e De fe nd a nt a pp e a ls.

A trial judge is ve sted with the discretionary authority to r evoke probation if a pre pondera nce of the e vidence establishes that a d efe ndant violated the c onditions of his or her proba tion. See Tenn. Code Ann. §§ 40- 35-310, -311( e); State v. S haff er, 45 S.W.3d 553, 554 (Tenn. 2001). “ The proof of a probation violation need not be established be y ond a reasonable doubt, but it i s sufficient if it allows the trial judg e to make a conscie ntious and intelligent judg ment.” State v. Harkins, 811 S.W .2d 79, 82 (Tenn. 1991)

. When a proba tion revocation is challeng ed, t h e ap p ell ate c ourts have a limit ed scope of revie w. This Court will not overturn a trial c ourt’s re vocation of a defe ndant’s probation absent an-3-

abuse of discretion. See Shaffe r, 45 S.W .3d at 554. For an appellate court to be war rante d in finding that a trial judg e abuse d his or her discretion by revoking probation, “the re must be no substantial evidenc e to support the conc lusion of the trial court that a violation of t he conditions of proba tion has occ urre d.” I d.

At the be g inn ing of

the pr ob a tio n r e vo c a tio n h e ari ng , th e De fe nd a nt s tip ulate d tha t the fa c ts contained in the a ffidavits of the pr obation violation warra nts dated May 30, 2003 an d M ar ch 17, 2005 wer e “tr

ue and corre ct.” She enter ed pleas of guilty to the violation warr ants. I n mitigation, the Def endant testified tha t she had sig nificant he alt h p ro b l em s which contributed to he r being unable to comply

with the terms of he r proba tion. She testified tha t she suffe red f rom diabete s and that beca use of he r illness there w ere times she was una ble to work or r eport to her probation off

icer

. She admitted that she stopped re p o rt i n g to her probation officer when she found out a violation

wa rr a nt h a d b e e n is su e d a g a ins t he r. She te sti fi e d th a t sh e wa s a fr a id if sh e wa s a rr e ste d s he wo uld not be re lease d on bond and she w anted to try and get her m edica l problems t aken car e of be fore she
went to jail. She told the court that he r medica l condition had improved and tha t she had he r “blood
sug ar unde r control.” She asked the court to g ive her another chanc e.

At the c o n cl u s i o n o f t h e p ro b at i o n re v o ca t i o n h ea ri n g, t h e t ri al co u rt fo u n d t h at t h e D ef en d ant

was e ntitled to “no miti g ation.” The trial court thus orde red tha t the Def endant’ s p robation be revoke d and her

eig ht-y ear

sentenc e be se rved in the D epartment of Correc tion.

On appe al, the De fenda n t ar gu es that the trial c ourt abused its discre tion by revoking her
pr ob a tio n a ndor de ri ng he r t o s erve her sen tenc e s in c on fi ne me nt. She arg ue s th a t he r a bil ity to p e r f o r m a c c o r d i n g t o t h e t e r m s o f h e r p r o b a t i o n w a s a d v e r s e l y i m p a c t e d b y h e r u n s t ab l e h e a l t h

. In her brief, the D efe ndant conc edes tha t she was “ in error ” for not c ontinuing to r eport to her probation office r, but she ar g ues that the trial court abused its discr etion by failing to g ive proper weig ht to the mitigating fac tors prese nted.

I t is appare nt that this record supports the finding of the trial court tha t the Def endant violated the conditions of her

probation. I n our view, w hen the De fenda nt pled g uiltyto the ch ar ges of violating he r proba tion, specifica lly stipulating and ag ree ing that she had violated the ter ms of her probation as se t forth in the war rants, this was suff

icient to support the finding of the trial court that a violation of the c onditions of probation had occur red. The primary

arg ument of the De fenda nt on appea l is that the trial judge abused his discr etion by failing to give proper

weig ht to the miti g ating fac tor of the Def

endant’ s health issues. The trial court, a s fac t finder, de termines the c redibility of the witnesses. I n this case, the tr ial court found “ no mitigation.” It is appare n t that the trial court gav e n o cr ed i b i l i t y

t o t h e D ef

en d an t ’s ex p l an at i o n

. W e w i l l n o td i s t u rb t h at fi n d i n g.

This was not the first time that the De fenda nt was found to be in violation of her pr obation. I ndeed, the trial court had previously require d her to serve one of her sentence s in jail because she violated the ter ms of h er p ro b at i o n . After rec eiving the opportunity to serve the balanc e of he r

se nte nc e s o n p ro ba tio n, the De fe nd a nt a g a in v iol a te d th e te rm s o f h e r p ro ba tio n. Un de r the se-4-

circ umstances a nd based upon our revie w of the entire rec ord, we are unable to c onclude that the trial
court e rre d or abuse d its discretion by revoking the Def

endant’ s proba t i o n and orde ring that her
sentenc es be se rved in the D epartment of Correc tion.

Acc ording ly , the judg ment of the trial c ourt is affir med.

___________________________________ DAVI D H. WEL LES, J UDGE