### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs N ove mb er 10, 200 9
STA TE OF TEN NES SEE v. LOR OY SA LTER

Direc t Appeal from the Circ uit Court forDyerCounty No. 09-CR -1 Russell Lee Moor e, Jr., Judge

No. W2009-00981-C CA-R 3-CD - Filed Dece mber 23, 2009

The de fenda

nt, L oroy Salter, wa s found to be in vi olation of his probationary sentenc e in the Dy e r s b u r g C i t y C o u rt a n d w a s s e n t e n c e d t o t w e n t y d a y s i n j a i l a n d n i n e t y d a y s of c omm un ity service . The de fenda

nt subsequently

appea led the decision to the Dy er County Circuit Court, which aff irmed the violation and the r esulting se ntence . On appe al, the defe ndant contends that the trial court a bused its discretion in order ing r evocation, based upon the defendant’s failure to pay costs and fines, without conducting a hearing on his ability to pay . Following revie w of the r ecor d, we a ffirm the judg ment of the trial c ourt. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cir cuit Court Af firme d

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of the court, in which R OBER T W. W EDEMEYER a nd J. C. M C L IN , JJ., joined. Noel H. Riley, II , Dyer sburg, Tenne ssee, f or the a ppellant, Loroy Salter

. Robert E. Cooper, Jr ., Attorney Ge n er al an d Reporter ; Clark B. Thornton, Assistant Attorney Gene ral; and C. Phillip B ivens, District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.
OP IN ION

P roce dural Hi story
The de fenda

nt was plac ed o n

p r o b a ti o n in th e D ye r s b urg City

Court following his convic tions for multiple misdemeanors. A vi olation war rant was filed aga inst the defenda nt, and the city

court judge revoke d his sentence and orde red him to serve t we n t y d ay s in jail and ninety day s of community

service

. The defenda

nt appea led that dec ision to t he Dy er County Circuit Court, and a fu ll he a ri ng wa s he ld on the ma tte r. Th e de fe nd a nt’ s p ro batio n o ff ic e r, Sa m H e lm, te sti fi e d th a t th is was the de fenda

nt’s third violation of probation. After being place d on probation, the de fenda nt
rec eived ne w cha

rg es for violation of the che ck law a nd failure to a

ppear

. The instant violation was ba se d u po n th e de fe nd a nt’ s f

a ilure to ma ke pa

y me nts tow a rd his $1 80 0 ba lanc e of fi ne s a nd c os ts-2-

and his failure to report a s order ed. Mr. He lm stated that in the previous t welve months, the defe ndant had r eporte d only five times despite be ing or dere d to report onc e a month.

Mr . H e lm t e sti fi e d th a t whe n the vio la tio ns we re fi le d, the de fe nd a nt’ s “ ba sic ro uti ne wa s to
c ome in ri g ht b e fo re c ourt , te ll [h im]h e did n’ t ha ve a job or he c ou ldn ’t

pa y .” I mme diate ly

pr ior to the hea ring in city court, the defe ndant came in a nd paid $1 toward his f

ines. Mr. Helm stated that the def endant ha d a bala

nce of $1819.64 and that he ha d only paid $109.

The de fenda

nt also testified and, in c ontradiction, stated that he ha d repor ted “e very

month”
a nd ne ve r m iss e d a

ny re po rt da te s. He a c kn ow le dg e d that he ha d pa id on ly $1 09 bu t state d th a t it was be cause he had lost his job and beca use he was car ing for his f ive childre n. He state d that he made pa y ments when h e had the money . He f urther r elated that he was not pre sently employ ed, althoug h he had be en see king e mploy ment. When asked, the defe ndant acknow ledg ed that only one of his c hil dr e n li ve d w ithhim , th a t he wa s o rd e re d to pa y su pp or t on the oth e rs , a

nd tha t he wa s in
arr ear s “betwe en 18 and 19 thousa nd” dollars.

After hear ing the evidenc e prese nted, the trial court aff irmed the city

court’s r evocation of probation and r esulting se ntence . The de fenda nt has timely

appea led that dec ision.

Ana lys is On appe al, the def

endant r aises the sing le issue of whether the trial court abused its discretion in affir ming the pr obation revoc ation. A trial court may revoke probation and orde r imposition of the orig inal sentenc e upon a f inding by a pre pondera

nce of the evidenc e that the person ha s violated
a c on dit ion

of pr ob a tio n. T. C.A . § 40 -3 5- 31 0, -3 11 (2 00 6) ; State v. Shaffer , 4 5 S. W. 3 d 5 5 3 , 5 54 (Tenn. 2001) . This court re views a r evocation of probation under an abuse of discretion standa rd. Sta te v . S tub ble fie ld , 9 5 3 S

. W

. 2 d

2 2 3 , 2 2 6 ( T e n n

. C r i m

. Ap p

. 1 9 9 7 ) ( ci t i n g State v. Hark ins , 811 S.W. 2d 79 , 8 2 ( Te nn . 1 99 1) ; Sta te v . D e lp , 6 14 S.W. 2d 39 5, 39 8 ( Te nn . Cr im. Ap p. 19 80 )) . T his
me a ns that th e tr ia l c ourt wi ll b e a ff

ir me d unle ss t

he re c or d c on ta ins no su bs tanti a l e vid e nc e to support the conc lusion of the trial court. Harkins , 8 1 1 S

. W

. 2 d a t8 2

. If t h e t r i a l c o u rtf

i n d s b y a preponde ranc e of the evidenc e that the defe ndant has violated a condition of probation, the c ourt has the authority

to revoke the probation and reinstate t he judg ment as orig inally enter ed. T.C.A. § 40- 35-311(e ). Discr etion i s abused only if the re cord c ontains no substantial evidence to support the trial court’ s conclusion that a violation has oc curr ed. Harkins , 811 S.W .2d at 82.

On a pp e a l, t he de fe nd a nt c on te nd s th a t th e tr ia l c ourt a cte d arbi trari ly

in r e vo kin g his probation bec ause the court did “not have the authority to require that the def endant se cure or pay the costs ac crue d in the case at t he ins tance of the state be fore a hea ring on the def

endant’ s petition fo r a su sp e ns ion of se nte nc e a nd pr ob a tio n wa s he ld.

. . .” He a rgue s th a t th e c ourt “ re lie d h e a vil y up on the fa c t th a t c os ts a

nd fi ne s h a d n ot [b e e n] pa id i n c le a r c on tr a dic tio n o f t he statut e .” I n it s fi nd ing s o f f

a c t on the re c or d, the tr ia l c ourt state d a s f

oll ow s:-3-

[Y] ou’ve taken ver

y l i gh t l y y our violation probation - - a nd y our probation require ments, and y ou’ve tre ated it ver y cava lierly , in fac t you’ve pretty well ig nored being on probation. The Court f inds that y ou have violate d y our probat i o n . The Court finds it to be a willful violation. You’ve made no e ffort t o d o what y ou’re supposed to do. Quiet fra nkly , if this were a ca se i n my court, I would violate y ou in full. Thoug h somewhat unc lear , we a ssume that the def endant’ s argument is bas ed u p o n the statutory law, which w as repe aled, that prohibited pay ment of cour

t costs as a c ondition of probation. T.C.A. § 4 0 -2 9 0 1 (repeale d). Howe ver, c urre nt law states that the c ourt may lawfully make the pay ment of the fine s and costs a condition of probation. State v. Pe rry EugeneW allace , No. 01C01- 9306-CC-00171 (Tenn. Crim. App., De c. 2, 1993). The law fur ther a llows that probation may be revoke d for nonpa

y ment if the def

endant willfully

ref uses to pay

or does not make suff

icient bona fide e ffor ts to acquire the resour ces to pa y

. State v. Dy e , 715 S.W .2d 36, 40-41 (Te nn. 1986).

The de fenda

nt also seems to asser

t that the court e rre d in failing to make a f inding that the de fe nd a nt’ s n onpa

y me nt w a s n ot w ill fu l be c a us e of the de fe nd a nt’ s f

ina nc ia l st a tus . H ow e ve r, in this case, the tr ial court made a spec ific finding that the def endan t h ad m ade “ no eff ort” to make pay ments toward his co s t s

. T he probation officer testified that, since the violation in Februa ry of 2008, the def

endant pa id only

$109 toward the balanc e and paid a total of $1 the last time pay

ment
wa s ma de . T his is s uf

fi c ie nt t o s up po rt

the tr ia l c ourt ’s fa ilure that th e de fe nd a nt h a d wil lf ull y ref used to pay

. Moreove r, the defe ndant’s argument ignor es the e x istence of a sec ond independe nt basis for finding that a viol ation had occurre d. The probation office r t estified that the de fenda nt had fa iled to r e po rt a s o rd e re d. Th e tr ia l c ourt ’s fi nd ing s th a t th e de fe nd a nt h a d “ ta ke n v e ry lig htl y

. . . [hi s] pr ob a tio n r e qu ir e me nts ” imp lie dly a dd re sse s th is, a nd

we a g re e that no thi ng pr e po nd e rate s a g a ins t thi s f ind ing . T hu s, even if th e c ourt ha d e rr e d in

re lyingup on

the de fe nd a nt’ s f

a ilure to p a y

to support the re vocation, this separ ate an d d i s t inct violation is m ore tha n sufficie nt to support
revoc ation. State v. Bobby Simmons , No. 01C 01-9803-CC-00127 (Tenn. Crim. App. at Nashville, J an. 29, 1999). We find no a buse of discr etion in the decision.

CO NC LU SION

Ba sed upon the for eg oing, the decision of the D y er County Circuit Court is affirmed.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE