# FILED May 14, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9712- CC-00594 ) Appellee, ) ) ) DICKSON COUNTY VS. ) ) HON. ALLEN W. WA LLACE, RODERICK S. WILLI AMS, ) JUDGE ) Appe llant. ) (Probation Revocation)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUI T COURT OF DICKSON C OUNTY
FOR THE APPELLANT : FOR THE APPELLEE : JOSEPH L. HORNICK JOHN KNOX WALKUP 98 Church Street, Suite 1 Attorney Generaland Reporter Dickson, TN 37055 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 DAN ALSOBROOKS Distri ct Attor ney General ROBERT WILS ON Assistant Distri ct Attor ney General P.O. Box 580 Charlotte, TN 37036
OPINION FILED ________________________ REVERSED AND REMANDED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defendant, Roderi ck S. Williams, appeals as of right fr om the trial
cou rt’s o rder revoki ng his probat ion and remanding hi m to the Tennessee Department of Correcti on to serve hi s eight-year sentence i n confinement for Class B theft of

property. The Def endant contends t hat the trial court erred by revoking hi s prob ation w hen th e cou rt (1) ba sed its determ ination solely o n his failure to pay rest ituti on, an d (2) failed to find o n the re cord th at he w illfully refused to make payments and that no suitable alternative to revocat ion existed. We agree, and we reverse th e revocati on of probatio n and re mand this case to the tri al court f

or reinstatement of the Defendant’s pr obation.

On Septem ber 21, 1 995, the Defendant pl eaded guilt y to and was
conv icted of Class B fel ony theft . The agreed sentencewas eight year s in t h e Departmen t o f Corre ction, to be se rved in com mun ity corre ctions “with C ourt’s permission to be transf erred to Cali fornia f

or Community Correct ions.” The judgment also stated thatthere was to b e a hearing to d etermine the amount of restit ution. This judgment was entered on September 22, 1995. On September 29, 1995, the cou rt entered an “agr eed order of

restitution.” This order ap pears to incorporate an agreement of t he parties that rest ituti on be set at $1 50,000
. The order did not

provide for a schedule of periodic payments, nor did the order refl ect theti me fr

ame withi n whi ch rest it uti on wa s to be ma de. A com mu nit y correcti ons order was als o entered on Se ptem ber 29 , 1995 . This order contai ned
a provision that the D efendant wo uld “pay all court costs, f ines and rest ituti on as outlinedin th e behavioralcontract. ” The order al so granted the Defendant-3-

permission to be “transferred to C aliforn ia to l ive and be supervised on
comm unity cor rec

ti ons. ” On thesame day , a “comm uni ty corre ctions t ransfer order” was en tered wh ich transfe rred the D efe n dant to the “Tennessee Departm ent of Correction s probation.”
On March 3, 1997, a pro bation vi olation warrant was i ssued allegi ng that the “Defe ndan t was to ld to m ake c ourt an d restitu tion pa ymen ts mo nthly to the Court. The last payment was paid on Novem ber 14, 1 996 to Circui t Cou rt. ” On N ovember 25, 1997, t he trialcourt conducted a hearing on t he proba tio n revocati on war ran t, fou nd t hat theDef enda nt h ad v iol ate d th e te rms of hi s probation, and ordered his eight-year sentence ser ved in the Tenn essee Department of Correction. It is from this order

that the Defendant appeals.

As a prelimi nary issue, we address and reject the Defendant’ s argument thatthe tri al court erred byallowin g a transfer of his super

vision f rom Com munity Co rrecti ons to Department of Correctio n probation. We find that the issue i s waived for fai lure to app eal the transfer at the t ime it occur red, in 1995. Furthermore, it appears fro m the reco rd before us t hat the tr ansfer was effectuated to faci litate the Defendant’ s move from Tennessee to Cali fornia, which we ass ume th e Defe ndant re queste d. He m ay not now c halle nge the transfer’s va lidity.

With respect to

the propri ety of t he Defendant’s r evocation, both t h e granting and denial of probation r

est in t he sou nd dis cretion of the tri al judge. State v. Mitch ell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Moreover , the trialjudge has the di scretionar y authori ty to revoke probati on if a preponderance-4-

of the evidence establi shes that a defendant viol ated the condi tions of probation. The trial judge m ust, how ever, addu ce suffi cient evi dence during t he probation revocati on hearin g to pe rmit an intelligen t decision
. Id. The determinati on made by the tri al court, if made w ith co nscientio us judgm ent, is given the weigh t of a j ury verdictand en titled to affirma nce. Stam ps v. State , 614 S.W.2d 71, 73 (Tenn. C rim. App. 198 0).

When a probation r

evocation i s challenged, this Court has a limited scope of review. The judgment of th e trialcourt revoking probati on will not be disturbed
on appeal u nless it appears that the trialcourt acted arbitr arily or ot herwise abused its discretion
. State v. Williamson , 61 9 S. W.2d 1 45, 146 (Ten n. C ri m. App. 1981). “For

this Court

to find an abuse of discretion by t he trialcourt in a p robation revocati on case, a defendant must demonstrate ‘that therecor d containsno substanti al evidence to support t he conclusion of the tri al judge t hat
a violation of the condition s of prob ation has occurre d.’ ” State v. W all , 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoti ng State v. Delp , 614 S.W.2d 395, 398 (Tenn . Crim. A pp. 198 0)); State v. Gabel , 914 S.W.2d 562, 564 (Ten n. C ri m. App. 19 95); see also State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991) (dicta).

When the alleged vio lation of pro bation is fa ilure to pay restitution or court costs, the cour t must inq uire into the reas ons for su ch non paym ent. Bearden v. Geo rgia , 461 U .S. 660 , 672 (1 983). T o issue an ord er of rev ocatio n, the tria l court must affi rmativel y find on t he record (1) that a defe ndant’s failure to pay was willful; and (2) that

alternat ives to i mprisonment were i nadequate to meet t he State ’s interest

s in punishi ng the offender, deterring others f rom similar conduct and insuringthe paym ent of restitu tion to victims
. State v. Dye , 715 S.W.2d 36,1 The total sum of restitution and court costs the Defendant is re quired to pay to the court equals

$152,537.
2 The warrant chargingthe Defendan t witha probation violation was issued on March 3, 1996. Following issuance of the warrant, but be fore the Defendant was arrested, the Defendantpaid an additional $150. Fi nally, after his arrest but prior to his rev ocation hearin g, the Defendant paid an addi tional $1050. -5- 41 (Tenn. 1986). “Purs uant to Bearden , ‘[u]nl ess such determinati ons are made

. . . , funda men tal fairne ss req uires th at the [d efend ant] rem ain on proba tion.’” Id. (quoting Bearden , 461 U .S. at 67 4) (bot h altera tions in Dye ). This h olding is subject to a caveat: If a defen dant was “‘som ehow resp onsible’” o r “‘at faul t in faili ng to pay,’” then application of Bearden is improp er. Id. at 40 (quoti ng Bearden , 461 U.S . at 665, 66 8).

At the probati on revocati on hearing, t he State el icited testi mony from a probation officer

that she was t he Defendant’s pr obation off icer for

“one day” pr ior to the tran sfer of h is supervis ion to Ca lifornia. She testif ied that s he talked to the Defendant about court costs and rest ituti on p ayme nts, and she testi fied that these payme nts were supposed to be pai d monthly. She testifi ed that she di d not know how much the restitution order included “because when [the Defendant] got put on probation that day it was $316 .00 and [the judg e and attorne ys] were going to determinethe restitution. ” The Defendant testifi ed that he understood he was supposed to pay $100 per month.

In this case, the State produced some evidence sh owing that a conditi on of the De fenda nt’s pro bation requir ed hi m to pay $100 per month in restitution and court costs. 1 The State furt her presented recor ds from the court clerk’s office demonstratingthatthe Defendant fai led to make a payment bet ween November 14, 1996 and March 3, 1997. 2 This was the soli tary ground supporting a violat ion-6-

of the Defendant’ s probation. In response, the Defendant ass erted that he had been unemployed for a period of ti me and that hi s mother had been diagnose d with cancer, prev

enting him from making regular p ayme nts beca use of the costs of her trea tment.

Our review of the revoca tion hearing be low offers us little insight into the trialcourt’s determ ination on the is su e of willfulnes s. The tria l court failed to make specific, formal fi ndings as to whether the Defendant wi llful ly ref used to pay and as to th e suita bility of alte rnative s to revo catio n. There fore, acco rding to Bearden and Dye , fundamental fairness requi res reinstatement of the Defen dant’s pro bation.

Mo reover, we conclude that even if t he trial court had made a speci fi c findingof willfulness , s uch a findingwould not have be en supported by any substanti al evidence. The proof reveal ed that the Defendant was required to pay a total of $152,537 as a condition o f his eight-year proba tion. Furt h er, the Defendant had been advised by a probation officer

to make a $100 payment per month. H ad the Defendant pai d $100 per month for eight year s, his total repayment would have equal ed only $9600. Rather than pay t he sched uled amount, the Defendant sent pay ments of $150 each. The court clerk’s record s show that he mad e these $15 0 paym ents i n May, July, August, and November of 1996. In September of 1996, the Defenda nt made two $150 payments; and in Octob er, he m ade a p ayme nt of $115 5. The Defendant made no paymentin December of 1996 or Ja nuary of 1997 , but the clerk credited h im with a payment on March 3, 1997. Regar ding thi s March payment, t he Defend ant produced-7-

re turn-receiptpostage s lips mar ked Februar y 18 and Febr uary 28 to show t ha t he had made this paym ent (cred ited Marc h 3) in Fe bruary.

This proof simpl y does not suppor t the State’s argument t ha t the Defendan t failedto pay for seven to nine months. Furthermore, the proof would n ot support a finding of willful fai lure to pay . Neither this Court

nor the trial court

may conside r proof su cceed ing the da te a probation violat ion warrant w as issue d to determine whethera violation o ccurred
. State v. Sacra , No. 88-278-I II, 1989 WL 71037, *2 (Tenn . Cr im. App., Nashvil le, June 29, 1989). In or der to fi nd that the Defendant failed to pay for seven to nine mon ths, the trial cou rt would nece ssarily have considered t he month s foll owing issuance of the Defendant’ s violat ion
warra nt. Th is would h ave con stituted an abuse of discretion
. See Sacra , 1989 WL 71037, at *2 (“ [T] he trialcourt’s reliance upon facts whi ch succeeded the issuance of the probat ion revocat ion warrant is a pat ent and a rbitr ary abuse of discretion .”).

T he proof prior to March 3, 1997—the violation warrant i ss uanc e date—shows that

the Defend ant fail ed tomake De cember 1996 and January 1997 p ayme nts towa rd his cou rt costs and res titution. In additi on, between the dates of May 1996 a nd March 1997, the Defendant paid a total of $2 205. Had the Defendant made the scheduled $100 pay ments toward his debt for thesame time p eriod, h e wou ld have paid a total of $1 000. The Defendant clearly made
a good fa ith effort to ho nor his de bt; but, as he testifi ed at his revocat ion hearing, he was unab le t

o pay for var iou s re ason s i ncl udi ng un empl oyme nt an d fam ily medic al hardsh ip.-8- At the conclusi on of the proof at the probat ion revocat ion hearing, the assistant

district attorney stated, “[W ]ell, your honor, obviou sly it was a mistake to enter into the plea w here he was go ing to pay $150,000.00. So you can just go on and viol ate him and be done with it because o therwise we’ll be ba ck here every six months. ” While the trial court rejected the argument that t he Defe ndan t’s probation s hould be viol ated simply becau se the r estitut ion order
was unreal ist ic, it

isappa ren t f rom the reco rd th at the tria l judge agree d that it
was unreal is tic to expect the Defendant to be abl e to make resti tution i n the amount of $15 0,000 . It appe ars to th is Cou rt that this shou ld have been obvious at the time t he plea was enter ed. Neverthel ess, the State agreed t h at the Defe ndan t’s eight-yea r senten ce wou ld be serv ed on p robation subject to payment of restitution i n the amount of $150, 000. No payment schedule was included in any cou rt order. The Defendant’s pr obation off icer was unaware of the total a mount of restitution or dered in thi s case. It is apparent

that no o n e expected the Defendant to be able to pay the $150,000 i n lump su m. T he Defendant and h is prob ation o fficer ap paren tly agree d that h e cou ld pay $100 or $150 p er mon th.

It may be that to r

einstate the Defendant’ s probation after he ha s bee n in the penitentiary for ove r one a nd on e-half y ears w ill only incr ease the confusi on in his case. Nevertheles s, we do notbelieve that this record support s a findi ng thatthe Defen dant wil lful ly fa iled o r refu sed to compl y wi th court -ordered restit ution. For thes e reaso ns, w e revers e the re vocatio n of the Defe ndan t’s probation. We remand this cas e to the Crimina l Court for D ickson C ounty to enter an order

reinstat ing his pr

obation and for such ot her proceedings as may be appropriate.-9- ____________________________________ DAVID H. WELLES , JUD GE
CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ JOHN EVER ETT WILLI AMS, J UDGE