### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 16, 2002 STATE OF TENN ESSEE 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 - F iled January 21, 2003

While serving a sentence in a community corrections pro gram , the defendant was indicted and arrested on two counts of selling and del ivering co caine. His community cor rections status was revoked upon proof of the indictment an d arres t alo ne. The defendant claims that proof of an indictmentand arrest, standing alone, is insufficient to suppor t a revoc ati on of a co mmunity correc tions sente

nce. We a

gree a nd rever se the jud

gment f rom the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. Ross E. Alderman, District Public Defender; Jeffrey A. DeVasher, Wendy

S. Tucker, and Jonathan Farmer, Assistant Public Defenders, for the a ppellant, Clyde T. Smith. Paul G. Summer, Attorney Ge ner al and Reporter; Thomas E. Williams, II I, Assistant Attorney Genera l; Victor S. (Torry) J ohnso n, II I, District Attorney

General; and Dan Hamm, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.
OPINION Background On March 3, 2000, the

defenda nt, Clyde T. Smith, pled guilty in Davidson County to selling less than .5 g

rams of a substanc e contai ning co caine, i n viola ti on of Tennessee Code Annotated section 39-17-417, and, pursuant to the plea agreement, was sentenced to twelve years as a R ange II I offender, to be

served in a community c orrections program. In April, 2001, the defendant was indicted in Robertson County for the sale and de livery of more than .5 grams of cocaine on November 15, 2000, and for the sale and delivery of le ss than .5-2-

grams of cocaine on November 29, 2000, and subsequently ar rested. After

a revocation hearing on January 24, 2002, t

he tria l court, rel yin g exclusi vely on the pending indi ctment and the re- arrest, revoked the defendant’s community corrections sentence and ordere d imposition of his twelve-year sentence. Analysis Our supreme court, in Harkins v . State , determined that a community c orrections 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 a buse of discretion. See State v. Harkins , 811 S.W.2d 79, 82 (Ten n. 1991). Failure to comply with the terms of probation subjects an offender to revoca tion procee dings. Tenn. Code Ann. § 40-36-106(e)(3)(B) (2002). In determining whether to revoke the sentenc e, the trial

court mus t find by

a preponderanc e of the e vidence that the c onditions of th e sentence were violated. Tenn. Code Ann. § 40-35- 311(e) (2002). In order to

find an a buse of di scretion , it must be e stablish ed that the record contains no substantial ev idence 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. D elp , 614 S.W.2d 396, 398 (Tenn. Crim. App. 1980). The only facts established a t the revocation hearing in the instant case were that the defendant was re-arres ted and in dic ted on two counts. There was absolutely no evidence presented at the revoca tion hear ing con cerning

the under

lyin g fact s that led to the indictment and arrest. While an indi ctment

is more than a “mere accusation”, it is nonetheless inadequa te, standing alone, to establis h that a condition of community corrections was violated. An indictment is an accusation in writing presented by the g rand jury of the county, char

ging a person with an indictable offe nse. Tenn. Code A nn. § 40-13-101(a) (1997). There must be more than a “mere accusation” if the gr oun ds fo r 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 judgme nt whether the conduct in question violated the law. Harkins , 811 S.W.2d at 83, note 3. An indictm

ent is bas ed on pro

bable cause, State v. B racket

t , 869 S.W.2d 936, 938 (Tenn. Crim. App. 1993), whereas the standard for revoc ation (of probation) is preponderance of the evid ence. St ate 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 arre st or an in dictment to revoke a d efendant’s probation. Thus, the State must produce evidence in the usual for

m of testimo ny i n order to establish the probationer’s commission of another offense. The only evidenc e introduced at the revocation hearing w as a copy of the indictment from Robertson County and the defe ndant's acknowledgment

th at he had been arrested. Because a community

corrections sentence revocation is ana logous to a probation

revocation, we conclude the trial court erred in revoking the def endant’s community corr ections sentence.-3-

Accordingly , we reverse the judgment from the tria l court and vacate the revocation of the community corrections sentence.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE