FILED

May 14, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9712-CC-00594

)

Appellee, )

)

) DICKSON COUNTY

VS. )

) HON. ALLEN W. WALLACE,

RODERICK S. WILLIAMS, ) JUDGE

)

Appellant. ) (Probation Revocation)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF DICKSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

JOSEPH L. HORNICK JOHN KNOX WALKUP

98 Church Street, Suite 1 Attorney General and Reporter

Dickson, TN 37055

CLINTON J. MORGAN

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

DAN ALSOBROOKS

District Attorney General

ROBERT WILSON

Assistant District Attorney General

P.O. Box 580

Charlotte, TN 37036

OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Roderick S. Williams, appeals as of right from the trial

court’s order revoking his probation and remanding him to the Tennessee

Department of Correction to serve his eight-year sentence in confinement for

Class B theft of property. The Defendant contends that the trial court erred by

revoking his probation when the court (1) based its determ ination solely on his

failure to pay restitution, and (2) failed to find on the record that he willfully

refused to make payments and that no suitable alternative to revocation existed.

We agree, and we reverse the revocation of probation and remand this case to

the trial court for reinstatement of the Defendant’s probation.

On Septem ber 21, 1995, the Defendant pleaded guilty to and was

convicted of Class B felony theft. The agreed sentence was eight years in the

Department of Correction, to be served in community corrections “with Court’s

permission to be transferred to California for Community Corrections.” The

judgment also stated that there was to be a hearing to determine the amount of

restitution. This judgment was entered on September 22, 1995. On September

29, 1995, the court entered an “agreed order of restitution.” This order appears

to incorporate an agreement of the parties that restitution be set at $150,000.

The order did not provide for a schedule of periodic payments, nor did the order

reflect the time frame within which restitution was to be made. A community

corrections order was also entered on September 29, 1995. This order contained

a provision that the Defendant would “pay all court costs, fines and restitution as

outlined in the behavioral contract.” The order also granted the Defendant
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permission to be “transferred to California to live and be supervised on

comm unity corrections.” On the same day, a “community corrections transfer

order” was entered which transferred the Defendant to the “Tennessee

Department of Corrections probation.” 

On March 3, 1997, a probation violation warrant was issued alleging that

the “Defendant was told to make court and restitution payments monthly to the

Court. The last payment was paid on Novem ber 14, 1996 to Circuit Court.” On

November 25, 1997, the trial court conducted a hearing on the probation

revocation warrant, found that the Defendant had violated the terms of his

probation, and ordered his eight-year sentence served in the Tennessee

Department of Correction. It is from this order that the Defendant appeals.

As a preliminary issue, we address and reject the Defendant’s argument

that the trial court erred by allowing a transfer of his supervision from Community

Corrections to Department of Correction probation. We find that the issue is

waived for failure to appeal the transfer at the time it occurred, in 1995.

Furthermore, it appears from the record before us that the transfer was

effectuated to facilitate the Defendant’s move from Tennessee to California,

which we assume the Defendant requested. He may not now challenge the

transfer’s validity. 

With respect to the propriety of the Defendant’s revocation, both the

granting and denial of probation rest in the sound discretion of the trial judge.

State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Moreover, the

trial judge has the discretionary authority to revoke probation if a preponderance
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of the evidence establishes that a defendant violated the conditions of probation.

The trial judge must, however, adduce sufficient evidence during the probation

revocation hearing to permit an intelligent decision. Id. The determination made

by the trial court, if made with conscientious judgm ent, is given the weight of a

jury verdict and entitled to affirmance. Stamps v. State, 614 S.W.2d 71, 73

(Tenn. Crim. App. 1980).

When a probation revocation is challenged, this Court has a limited scope

of review. The judgment of the trial court revoking probation will not be disturbed

on appeal unless it appears that the trial court acted arbitrarily or otherwise

abused its discretion. State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim.

App. 1981). “For this Court to find an abuse of discretion by the trial court in a

probation revocation case, a defendant must demonstrate ‘that the record

contains no substantial evidence to support the conclusion of the trial judge that

a violation of the conditions of probation has occurred.’” State v. Wall, 909

S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting State v. Delp, 614 S.W.2d 395,

398 (Tenn. Crim. App. 1980)); State v. Gabel, 914 S.W.2d 562, 564 (Tenn. Crim.

App. 1995); see also State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (dicta).

When the alleged violation of probation is failure to pay restitution or court

costs, the court must inquire into the reasons for such nonpayment. Bearden v.

Georgia, 461 U.S. 660, 672 (1983). To issue an order of revocation, the trial

court must affirmatively find on the record (1) that a defendant’s failure to pay was

willful; and (2) that alternatives to imprisonment were inadequate to meet the

State’s interests in punishing the offender, deterring others from similar conduct

and insuring the paym ent of restitution to victims. State v. Dye, 715 S.W.2d 36,
1

 The total sum of restitution and court costs the Defendant is required to pay to the

court equals $152,537. 

2

 The warrant charging the Defendant with a probation violation was issued on March

3, 1996. Following issuance of the warrant, but before the Defendant was arrested, the

Defendant paid an additional $150. Finally, after his arrest but prior to his revocation hearing,

the Defendant paid an additional $1050.

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41 (Tenn. 1986). “Pursuant to Bearden, ‘[u]nless such determinations are made

. . . , fundamental fairness requires that the [defendant] rem ain on probation.’”

Id. (quoting Bearden, 461 U.S. at 674) (both alterations in Dye). This holding is

subject to a caveat: If a defendant was “‘som ehow responsible’” or “‘at fault in

failing to pay,’” then application of Bearden is improper. Id. at 40 (quoting

Bearden, 461 U.S. at 665, 668). 

At the probation revocation hearing, the State elicited testimony from a

probation officer that she was the Defendant’s probation officer for “one day” prior

to the transfer of his supervision to California. She testified that she talked to the

Defendant about court costs and restitution payments, and she testified that

these payments were supposed to be paid monthly. She testified that she did not

know how much the restitution order included “because when [the Defendant] got

put on probation that day it was $316.00 and [the judge and attorneys] were

going to determine the restitution.” The Defendant testified that he understood

he was supposed to pay $100 per month.

In this case, the State produced some evidence showing that a condition

of the Defendant’s probation required him to pay $100 per month in restitution

and court costs.1

 The State further presented records from the court clerk’s office

demonstrating that the Defendant failed to make a payment between November

14, 1996 and March 3, 1997.2 This was the solitary ground supporting a violation
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of the Defendant’s probation. In response, the Defendant asserted that he had

been unemployed for a period of time and that his mother had been diagnosed

with cancer, preventing him from making regular payments because of the costs

of her treatment. 

Our review of the revocation hearing below offers us little insight into the

trial court’s determ ination on the issue of willfulness. The trial court failed to

make specific, formal findings as to whether the Defendant willfully refused to pay

and as to the suitability of alternatives to revocation. Therefore, according to

Bearden and Dye, fundamental fairness requires reinstatement of the

Defendant’s probation. 

Moreover, we conclude that even if the trial court had made a specific

finding of willfulness, such a finding would not have been supported by any

substantial evidence. The proof revealed that the Defendant was required to pay

a total of $152,537 as a condition of his eight-year probation. Further, the

Defendant had been advised by a probation officer to make a $100 payment per

month. Had the Defendant paid $100 per month for eight years, his total

repayment would have equaled only $9600. Rather than pay the scheduled

amount, the Defendant sent payments of $150 each. The court clerk’s records

show that he made these $150 payments in May, July, August, and November

of 1996. In September of 1996, the Defendant made two $150 payments; and

in October, he made a payment of $1155. The Defendant made no payment in

December of 1996 or January of 1997, but the clerk credited him with a payment

on March 3, 1997. Regarding this March payment, the Defendant produced
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return-receipt postage slips marked February 18 and February 28 to show that

he had made this payment (credited March 3) in February. 

This proof simply does not support the State’s argument that the Defendant

failed to pay for seven to nine months. Furthermore, the proof would not support

a finding of willful failure to pay. Neither this Court nor the trial court may

consider proof succeeding the date a probation violation warrant was issued to

determine whether a violation occurred. State v. Sacra, No. 88-278-III, 1989 WL

71037, *2 (Tenn. Crim. App., Nashville, June 29, 1989). In order to find that the

Defendant failed to pay for seven to nine months, the trial court would necessarily

have considered the months following issuance of the Defendant’s violation

warrant. This would have constituted an abuse of discretion. See Sacra, 1989

WL 71037, at *2 (“[T]he trial court’s reliance upon facts which succeeded the

issuance of the probation revocation warrant is a patent and arbitrary abuse of

discretion.”). 

The proof prior to March 3, 1997—the violation warrant issuance

date—shows that the Defendant failed to make December 1996 and January

1997 payments toward his court costs and restitution. In addition, between the

dates of May 1996 and March 1997, the Defendant paid a total of $2205. Had

the Defendant made the scheduled $100 payments toward his debt for the same

time period, he would have paid a total of $1000. The Defendant clearly made

a good faith effort to honor his debt; but, as he testified at his revocation hearing,

he was unable to pay for various reasons including unemployment and family

medical hardship. 
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At the conclusion of the proof at the probation revocation hearing, the

assistant district attorney stated, “[W]ell, your honor, obviously it was a mistake

to enter into the plea where he was going to pay $150,000.00. So you can just

go on and violate him and be done with it because otherwise we’ll be back here

every six months.” While the trial court rejected the argument that the

Defendant’s probation should be violated simply because the restitution order

was unrealistic, it is apparent from the record that the trial judge agreed that it

was unrealistic to expect the Defendant to be able to make restitution in the

amount of $150,000. It appears to this Court that this should have been obvious

at the time the plea was entered. Nevertheless, the State agreed that the

Defendant’s eight-year sentence would be served on probation subject to

payment of restitution in the amount of $150,000. No payment schedule was

included in any court order. The Defendant’s probation officer was unaware of

the total amount of restitution ordered in this case. It is apparent that no one

expected the Defendant to be able to pay the $150,000 in lump sum. The

Defendant and his probation officer apparently agreed that he could pay $100 or

$150 per month. 

It may be that to reinstate the Defendant’s probation after he has been in

the penitentiary for over one and one-half years will only increase the confusion

in his case. Nevertheless, we do not believe that this record supports a finding

that the Defendant willfully failed or refused to comply with court-ordered

restitution. For these reasons, we reverse the revocation of the Defendant’s

probation. We remand this case to the Criminal Court for Dickson County to

enter an order reinstating his probation and for such other proceedings as may

be appropriate.
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____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

JOHN EVERETT WILLIAMS, JUDGE