# FILED
March 31, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE FEBRUARY

SESSION, 1999

STATE OF TENN ESSEE, ) ) No. 01C01-9803-CC-00153 Appellee ) ) GILES COUNTY vs. ) ) Hon. William B. Cain, Judge SAMUEL KIMOE ROBINSON, ) ) (Revocation of Probation) Appellant )
For the Appellant : For the Appellee : Samuel K. Robinson, Pro Se John Knox Walkup 201 East Sixth Street Attorney General and Repor ter Columbia, TN 38401 Georgia Blythe Felner Assistant Attorney Gener al Criminal Justice Div

ision 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Nashville, TN 37243-0493
T. Michael Bottoms District Attorney General 252 N. Military Av

enue Lawrenceburg, TN 38464

OPINION FILED: AFFIRMED
David G. Hay

es Judge2 OPINION
The appellan t, Samuel Kimo e Robinson, pro ceeding pro se , appeals from the order of the Giles County Circuit Court rev oking his probation. On appeal, the appellant contends that he was denied minimal due proce ss guaranties.
Following rev

iew, we affirm the judgment of the trial court.

BACKGROUND
On February 20, 1997, the appel lant pled guilty to t wenty-two cri minal offenses. These included aggrav ated burglary, burg lary, theft and vandalis m. For these crimes, he receiv ed an effective fifteen year sentence w ith all time suspended. The conditions of his probated sentenc e included scheduled restitution payments and payments for cost and supervision fees.
On March 13, 1997, after being on probation for three weeks,a probation violation warrant issued which charged violation of the following rules: Rule 1, failure to obey the law; Rule 2, failure to report all arrests; Rule 4, failure to obtain employment; Rule 5, leavi ng the state without per mission; Rule 6, failure to report to probation officer; Rule 8, failur e to pay required fees; R ule 9, failure to submit to scheduled drug screens; an d Rule 10, special conditi ons - failure to pay restitution. Of the ten rules of probation, the appellan t violated all but two; however, in his closing statement at the revocation proceeding, he acknowledged violation of Rule 7, use of drugs, when he related, “I was upset at myself for going back to drugs, just almost maybe four days after getting out of jail.” The only violation untouched by the appellant was Rule 3, possession of a firearm. The probati on violation warr ant related additional pending burglary and theft charges against the appellant which occurred on March 6, 1997 i n Giles County. The appell ant was eventually arrested3

in Racine, Wisconsin, and transported back to Giles County. The r ecord indicates that the probation violati on warrant was ser ved on the appellant on May 12, 1997.
On March 3, 1998, a probation violation hearing was held in the Circuit Court of Giles County. With the exception of deny ing the new arrest c

harges in Giles County, the appellant presented no defense to the alleged rule violations for which he was charged. In miti gation, he related to the cour t: Pulaski is a very

small town and there is a lot of temptation around. . . . That’s why eventuall

y I got tired of it and Icalled my friend and we left . . . I was upset at my

self for going back on drugs . . . I left here with the intent to start over and do maybe what I was supposed to do at least half way. . . . At the conclusion of the hearing, the trial court entered into the record detailed findings of fact supportin g revocation of the appellant’s probation.

ANALYSIS
The appellant does not dispute the fact that the proof was sufficient to support revocation of his pr obationary status. Rather, on appeal, he argues (1) violation of his Sixth Amendment right to a speedy trial and (2) various due process violations. The State arg ues that these two enumerated i ssues were not raised by the appellant at trial lev el and are presented for rev iew for the first time on appeal

.
Generally, appellate cour ts review only

questions presented for deter mination in the lower court. Hester v. State , 450 S.W.2d 609, 611 (Tenn. Crim. App. 1969). During the appellant’s opening statement at the rev ocation hearing, he alluded to a probationer’s right t

o a “reasonably prompt hear ing” and to a probationer’s due process rights. No request for relief upon these generalized grounds w as ever presented and it is altogether unclear the context in which these statements were made. Rule 47, Tenn. R. Crim. P. , requires that a motion “ shall state with particularity the g rounds upon which it is made and shall set forth the reli ef or order1 In Allen v. State , 505 S.W.2d 715, 719 (Tenn. 1 974), our supr eme court extended the right t o a speedy trial t

o probatio n revocati on proceedings. Speaking for t he court i n Allen , Special Justice Leech concl uded that a pr obation re

vocation pr

oceeding is a

criminal pr

osecution. In so holding, the court relied upon the Sixth Amendm ent provision, “[ i]n al l criminal prosecution s , the accused shall e njoy th e right t o a speedy and publ ic tri al . . .,” ( emphasis in ori ginal) , and Arti cle 1, § 9 of the T ennes see C onstitution p rovision, “ [t]hat in all criminal pr

osecutions , the accu sed ha th the right to . . . a sp eedy pub lic trial . . . .” (emph asis in origina l). Allen , 505 S.W .2d 717- 718. W e note, however , that f

ollowi ng the Allen decision , num erous fe deral cou rts have h eld that the S ixth Amendment right to a speedy trial does not apply

to “probat ion revocat ion proceedi ngs, since t hey are not ‘crim inal proce edings’” w ithin the m eaning o f the con stitutional gua ranty. See United States v. Jackson , 590 F.2 d 121, 12 2-123 (5 th Cir.), cert. deni ed , 441 U.S. 912, 99 S.Ct. 2012 (1979) ( citation om itted); see also United Stat es v. Tippens , 39 F.3d 88, 89 (5th Cir. 1994 ); United States v. Taylor , 931 F.2 d 842, 84 8 (11th C ir. 1991), cert. deni ed , 502 U.S. 1102,112 S.Ct. 1191 (1992);; United Stat

es v. Willi ams , 558 F.2 d 224 (5 th Cir. 197 7); United Stat es v. Sackinger , 537 F. Supp . 1245, 12 48, n. 3 (W .D. N.Y. 19 82), aff’d , 704 F.2 d 29 (2d Cir. 1983 ). 4 sought.” Because we find these issues are now bei ng raised for the first time on appeal, we find them to be wai ved. Tenn. R. App. P. 36(a).Notwithstanding procedural default, we elect review of the appellant’s issues.

A
. SPEEDY T RIAL CLA IM The appellant asserts that his constitutional right t o a speedy trial was

denied because of the excessive del ay between the date of his ar rest and the scheduled probation hea ring. 1 In his brief, the appellant c ontends that the delay was “10.75" months. The record, howev er, is silent as to w

hen the appellant was retur ned to the state of Tennessee following hi s arrest and incarcerati on in Wisconsin. Even assuming for argument’s sak e that the occasioned delay w as “10.75" months, a mere lapse of time, absent more, does not constitute a denial of the rig ht to a speedy trial. State v. Bishop , 493 S.W.2d 81, 84 (Tenn. 1973); State v. Ensley , 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996), perm. to appeal denied , (Tenn. 1997). In Bishop , 493 S.W.2d at 84, our supreme court adopted the Barker v. Wi ngo , 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 ( 1972), four part balancing tes t to determine whether the right to a speedy trial has been abridged. If the length of the delay is not presumptively pre

judicial, the other balanci ng factors need not be considere d. Barker , 407 U.S. at 530, 92 S.Ct. at 2192.A delay of one year or l onger “marks the point at which courts d eem the delay unreasonable enoug h to trigger the Barker inquiry.” Doggett v. United States , 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, n. 15

(1992). B ecause we find the alleged d elay was not presump tively preju dicial, we conclude the appellant was not denied his right to a speedy trial.

B
. DUE PROCESS This state recognizes that a probationer has a liberty interest which is protected by due process of l aw. State v. Wade , 863 S.W.2d 406, 408 (Tenn. 1993); State v. Stubblefield , 953 S.W.2d 223 (Tenn. Crim. App. 1997); Practy v. State , 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974), cert. denied , (Tenn. 1975). Accordingly, the appel lant contends that his due proc ess rights were v

iolated by the State’s: (1) failure to provide the “guaranteed” preliminary hearing following his arrest for revocation of pr obation; (2) failure to be “s erved a written noti ce of violations;” (3) fail ure to be “given a dis closure of prepatory [si c] evidence prior to the hearing;” and (4) fail ure to be provided wi th “a written decisi on stating facts as to why revocation ensued.” See Gagnon v. Scarpelli , 411 U.S. 778, 93 S.Ct. 1756 (1973); Morrissey v. B rewer , 408 U.S. 471, 92 S.Ct. 2593 (1972).

The State contends that, under our st atutory scheme, the preli minary hearing is not required. We agree. The appellant erroneously relies upon Gagnon , 411 U.S. 778, 93 S.Ct. 1756 and Morrissey , 408 U.S. 471, 92 S.Ct. 2593, for th e proposition that he is guaranteed a preliminary hearing. However, Tennessee’s statutory scheme does not r equire a preliminary

hearing in probation rev ocation proceedings and fully compl ies with constitutio nal requirements. See Practy , 525 S.W.2d at 682 (“proceedings in this Stat e for revocation . . . more than comply with the mere minimal requirements stated in Morrissey

and Gagnon ”); see also Massey v. State , 929 S.W.2d 399, 401 (Tenn. Crim. App. 1996).
Next, the appellant contends that he was not served with a written notice of the violations. A defendant on pr obation is entitled to a written notice of the allegations that form the basi s for the revocation procee ding. Gagnon , 411 U.S. at6

786, 93 S.Ct. at 1761-1762. As pr eviously noted, the r

ecord establishes that the appellant was served with the warrant i ncluding the affidavit contai ning all of the alleged violations o n May 12, 1997.
Third, the appellant contends the S tate denied him due process by failing to provide disclosure of ev idence prior to the hearing . Specifically, he contends the State f ailed to d isclose “va rious exhi bits of e vidence” u sed at th e hearing and “two witnesses” that testified preventing him from prepar ing an adequate defense. The record is void of any request by the appellant to examine any evidence, nor is there evidence that this rig ht was denied by the Stat e. See State v. Robinson , 03C01- 9709-CR-00405 (Tenn. Crim. Ap p. at Knoxville, June 3, 1998).
With regard to the final alleged due proc ess violation, the appell ant contends that he was not provide d a written decision i ndicating the reasons his probation was revoked. The trial cour t made oral findings of fact on the rec ord at the conclusion of the hearing summarizing the evidence and grounds for the appellant’s probation revocation. This court has held that the trial cour t’s authentication of a transcr ipt of the hearing in which the trial court’s oral findings are included, meet this requirement of due process. State v. Delp , 614 S.W.2d 395, 397 (Tenn. Crim. App. 1980); State v. Crowe , 03C01-9606-CC-00225 (Tenn. C rim. App. at Knoxvil le, July 29, 1997).
In sum, the appellant was given prior notice of the revocation hearing, notice of the alleged violations , the right to cross-examine the two witnesses, call witness es in his defense, and testify on his own behalf. The requireme nts of due process were satisfied.
The judgment of the trial court i s affirmed.7 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

_________________________________ JAMES CURW OOD WIT T, JR., Judge

_________________________________ JOHN EVERETT WILLIAMS, Judge