IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 16, 2002

STATE OF TENNESSEE v. CLYDE T. SMITH

Direct Appeal from the Criminal Court for Davidson County

No. 98-B-1383 J. Randall Wyatt, Jr., Judge 

No. M2002-00553-CCA-R3-CD - Filed January 21, 2003

While serving a sentence in a community corrections program, the defendant was indicted and

arrested on two counts of selling and delivering cocaine. His community corrections status was

revoked upon proof of the indictment and arrest alone. The defendant claims that proof of an

indictment and arrest, standing alone, is insufficient to support a revocation of a community

corrections sentence. We agree and reverse the judgment from the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and

JERRY L. SMITH, JJ., joined. 

 

Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Wendy S. Tucker, and Jonathan

Farmer, Assistant Public Defenders, for the appellant, Clyde T. Smith.

Paul G. Summer, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and Dan Hamm, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Background

On March 3, 2000, the defendant, Clyde T. Smith, pled guilty in Davidson County to selling

less than .5 grams of a substance containing cocaine, in violation of Tennessee Code Annotated

section 39-17-417, and, pursuant to the plea agreement, was sentenced to twelve years as a Range

III offender, to be served in a community corrections program. 

In April, 2001, the defendant was indicted in Robertson County for the sale and delivery of

more than .5 grams of cocaine on November 15, 2000, and for the sale and delivery of less than .5
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grams of cocaine on November 29, 2000, and subsequently arrested. After a revocation hearing on

January 24, 2002, the trial court, relying exclusively on the pending indictment and the re-arrest,

revoked the defendant’s community corrections sentence and ordered imposition of his twelve-year

sentence.

Analysis

Our supreme court, in Harkins v. State, determined that a community corrections sentence,

as a practical matter, is similar enough to probation to justify applying the same standard of review

for a revocation; whether there was an abuse of discretion. See State v. Harkins, 811 S.W.2d 79, 82

(Tenn. 1991). Failure to comply with the terms of probation subjects an offender to revocation

proceedings. Tenn. Code Ann. § 40-36-106(e)(3)(B) (2002). In determining whether to revoke the

sentence, the trial court must find by a preponderance of the evidence that the conditions of the

sentence were violated. Tenn. Code Ann. § 40-35-311(e) (2002).

In order to find an abuse of discretion, it must be established that the record contains no

substantial evidence to support the conclusion that a violation of a term of probation occurred.

Harkins, 811 S.W.2d at 82, citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp,

614 S.W.2d 396, 398 (Tenn. Crim. App. 1980). 

The only facts established at the revocation hearing in the instant case were that the defendant

was re-arrested and indicted on two counts. There was absolutely no evidence presented at the

revocation hearing concerning the underlying facts that led to the indictment and arrest. While an

indictment is more than a “mere accusation”, it is nonetheless inadequate, standing alone, to establish

that a condition of community corrections was violated. An indictment is an accusation in writing

presented by the grand jury of the county, charging a person with an indictable offense. Tenn. Code

Ann. § 40-13-101(a) (1997). There must be more than a “mere accusation” if the grounds for

revocation is the commission of a new offense; indeed, the State is required to establish sufficient

facts at the revocation hearing to enable the court to make a proper judgment whether the conduct

in question violated the law. Harkins, 811 S.W.2d at 83, note 3.

 An indictment is based on probable cause, State v. Brackett, 869 S.W.2d 936, 938 (Tenn.

Crim. App. 1993), whereas the standard for revocation (of probation) is preponderance of the

evidence. State v. Harkins, 811 S.W.2d at 82. While this Court recently held that while pending

charges can be the basis for a revocation of probation, a trial court may not rely upon the mere fact

of an arrest or an indictment to revoke a defendant’s probation. Thus, the State must produce

evidence in the usual form of testimony in order to establish the probationer’s commission of another

offense.

The only evidence introduced at the revocation hearing was a copy of the indictment from

Robertson County and the defendant's acknowledgment that he had been arrested. Because a

community corrections sentence revocation is analogous to a probation revocation, we conclude the

trial court erred in revoking the defendant’s community corrections sentence.
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Accordingly, we reverse the judgment from the trial court and vacate the revocation of the

community corrections sentence.

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE