### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J une 19, 2002

STATE OF TENN ESSEE v. JOHN EARL TURNER, A LIAS

Appeal from the Criminal Court for Knox County No. 68239 Ray L. Jenkins, Judge

No. E2001-01373-CCA-R3-CD Filed July 12, 2002

The Defen da nt, John Earl Turner, appeals as of right from the judgment of the trial c ourt, which found him to be in violation of t he term s of the probation he was serving for two separate , nonrelated convictions. A fter a hearing, the trial judge ordered the Def endant incarcerated for the balance of the sentences, which were being ser ved consecutively to each other. We af firm the judgment o f the tria

l court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed

D AVID H. W ELLES , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined.

M ark Stephens, District Public Defender, and Aubrey L. Davis, Assistant Public Defende r, Knoxville , Tennes see, for the appe llant, Joh n Earl Tu rner, A lias.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney Genera l; Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION

On May 25, 1999, upon

his pleas of

guilty , the Def

endant w as convicted in Kno x County Criminal Court of one count of robbery and one count of aggra

vated burgla

ry . For the se convictions, the Defendant received sentence s of six years and four ye ars, respectively , with the sentences to be served co ns ec ut iv el y t o one another, for a total effective se ntence of ten y ears to be served on intensive probation. A probation violation warrant was issue d on Sep tember 14, 1999, charging that the Defendant

had violated the terms of both senten ces of probation by failing to work, failing to pay his fees, failing to observe cou rt-impose d conditio ns, and fa iling to p roperly coopera te with his probation officer. T he Defendant’s probation was then revoked, but he w as returned to intensive-2-

probation after serving forty -five da ys i n the coun

ty jail. On January 25, 2000, a second w arrant was issued charging the

Defendant

with violating his probation by failing to work at a lawful occupation and by using mar

ijuana. O n Marc h 16, 2000, the trial court ag ain found

the Defe ndant to be

in violation of probation and ordered him to serve we eken ds in the Knox County Detentio n Facility until April 21, 2000, after which theDefend ant was r elieved of the obl igation to spend w eekend s in jail, though the warrant remained in eff ect. The Defendant’s probation was re voked for a thir

d time

on September 5, 2000, becaus e the De fendant had failed to appear at a sc heduled hearing on the January 25, 2000, warrant. However, upon motion by the Defenda nt, the trial court reconsidered and placed the Defendant back on probation on September 12, 2000. On November 22, 2000, when the Defendant

failed to appear for a he aring, the trial court issued a capias for the D efenda nt’s arr est. On January 12, 20 01, the Defe ndant’s probation officer filed an amended wa rrant alleging as additional grounds for

revocation that the Defendant had failed to conta ct the probation office and had absc onded fr

om the cou

rt.

A hearing on the amended probation revocation warra nt was conducted on May 11, 2001. At the conclusion of the h earin g, the trial court found that the Defendant wa s in violation of the conditions of his probation with respect to bot h sentence s. The court also determined that the Defendant

should be incarcerated for the balance of his ten-y

ear sentence. It is from this judgment that the D efenda

nt appea ls.

The Defendant argues two re lated issues on this appeal : (1) that the trial court erred by failing to place the reasons for revocation in the record; a nd (2) that the trial court erred and abused its discretion by basing

its decision to revoke the Defendant’s probation on allegations that wer e not supported by the evide

nce.

A trial judge is vested with the discretionary authority to revoke pr

obation if a preponderance of the evidence establishes that a defendant violated the conditions of his or her probation. Tenn. Code Ann. §§ 40 -35-310, -311(e) ; State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). The trial judge must, however, adduce sufficient evidence dur ing the probation revocation hearing to allow him or her to make an intelligent decision. See Mitchell , 810 S.W.2d at 735.

Whe n a probation revocation is challenged, the a ppellate courts have a limited s cope o f review. For an appellate court to be warr anted in finding that a trial judge abused his or her disc ret ion by revoking

probation, it must be established that the record contains no substantial evidence to support the trial judge’s conclusion that a probation violation occurred and that b ecause of the violation, probation should be revoked. See State v. Harki ns , 811 S.W.2 d 79, 82 (Tenn. 1991); State v. Stu

bblefield , 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997).

With respect to the Defendant’s contention that the trial court erred by not placing its reasons for revoking his probationin the record, we must disagree. The Defendant argues that

the trial court committed error by

not including the evidence relied upon or t he basis for the r

evocati on in its revocation order

and points us to the United States Supreme Court case of Gagnon v. Scarp elli , 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 656 (1973). I n Gagnon , the Supre

me Court a

naly zed the pr

ocess1 W hile w e ho ld in th is inst ance that the tr ial judge’ s expl anati on from the bench of hi s re asons for r evoking

the Defendant’s probat ion is suffi cient, it should be noted that such a bare-bones app roac h is less th an id eal. Tr ial cou rts should make a consc ientious effort t o full y and complet ely s et f orth f indi ngs of f

act and a des cri pti on of t he evidence upon which t he deci sion is based when r evoking pr obati on.

-3- that is due a criminal defendant before his or her pr obation may be re

voked. While the Defendant is correct that the trial court did not set fo rth its re asons for

revoking the Defe ndant’s p robation in its writ ten order, the trial court did explain the basis for its ruling orally from the bench, and the transcript of the hearing reflects this. We have previously held that a tra nscript of the trial court’s oral findings made during the hearing amounts tosubstantial compliance with the procedural requirement

im po se d b y Gagnon

. See State v. D elp , 614 S.W.2d 395, 397 (Tenn. Crim. App.1980). At the Defen dant’s revocation hearing, the trial judg e’s remarks indicated that the Defenda nt’s failure to pass his drug screen had little impact on the trial court’s decision to revoke the probation. The trial judge went on to say that “the re’s no e xcusefor not reporting and absconding. He cannot be supervisedif he’s not present.” The trial court then ordered the Defendant’s probation revoked. While the trial court

could have gone into greater

detail, it is clear from the record that the trial court revoked the probation

based upon the undisputed evidence that the Defendant had failed to report to his prob ation off

icer an d had abs conded f

rom the c ourt. 1 This issue has no mer

it.

Ha ving d etermined that the trial court did satisfactorily place its reasons for revoking the Defendant’s probation in the record, we now turn to the Defe ndant’s a rgumen t that the t

rial cou rt, in making its decisio n to revok e the De fendant ’ s probati on, relied on allegations that were not supported by the evidenc e in the record. The Defendant’s pr obation officer testified at the hearing

on May 11, 2001, t

hat the De

fendant had fail ed to rep ort t o the probat ion office for a scheduled meeting on October 30, 2000. When the Defendant did report to the probation office two day s later, after his officer contacted him and demanded his appea rance, hewas administered a random drug
test. The results of the drug screen indicated the presence of marijuana

in the Def

endant’ s sy stem. The probation officer further testified that the Defendant

missed a court date on November 22, 2000, and that he had not seen the Defendant until the day of the hearing on May

11, 2001. At th at hear ing, the Defendant attempted to explain the presence of m arijuan a in his system by stating that he had
notsmoked an

y ma rijuana , but that he had be en hanging aro und with people who did. However the Defendant

conceded that he had failed to report to his probation offic er and had abscon ded. He stated that his re ason for

violating his proba tion in this manner was that the trial judge had warned him earlier that any

additional violations of

his proba tion, no ma

tter how s mall, woul d result in his incarceration.

From our review of theevidence presented at the probation revoc ation hearing, we conclude that there is ample evidence to support the conclusion that a violation of the conditions of the Defendant’s probation had occurred. Although the Defe ndant attempted to explain the presence of marijuana in his system, he

was unab le to justif

y hi s failure

to repor t to his probatio n office

r or his absconding from the court. The record clear ly supports the trial court’s finding s thatthe failu re to report and the absconding were violations of the termsof the De

fendant ’s proba

tion. The r

ecord a lso-4-

clearly shows that the trial judge exercised sound judgment in making the dec ision rather than acting arbitra rily . This issue

has no mer

it.

The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE