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# FILED
February 18,1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION
STATE OF TENN ESSEE , * C.C.A. NO. 01C01-9801-CC-00010 APPELLANT * DICKSON CO UNTY VS. * Hon. Allen W allace, Judge MICHAEL CHANEY , * (Probation Revocation) APPELLEE. *

For Appellant : For Appellee : Shipp R. Weems John Knox Walkup District Public Defender Attorney General and Repor ter P.O. Box 160 450 James Robertson Parkwa y Charlotte, TN 37036 Nashville, TN 37243-0493 Carey J. Thompson Daryl J. Brand Assistant Public Defender Senior Counsel P.O. Box 160 425 Fifth Avenue North Clarksville, TN 37

036 Nashville, TN 37243-0493 Erik W. Daab Legal Assistant 425 Fifth Avenue North Nashville, TN 37243-0493 Robert Wilson Assistant District A

ttorney General P.O. Box 580 Charlotte, TN 37036 OPINION FILED: ____________________
REVERSED NORMA MCGEE OGLE, JUD GE2 OPINION The appellant, Michael A. Chaney appeals as of right the order of the Circuit Court of Dick

son Court revoking his probation. On May 1 3, 1996, the trial court entered a judgment of conv iction pursuant to the appell ant’s plea of guilt to one count of vehicular homici de, a Class C felony. The tr ial court sentenced the appellant to three years i ncarceration in the Tennessee Department of Correction, but suspended the appellant’s sent ence and placed him on supervi sed probation. Special conditions of the appell ant’s probation included pay ing court costs and completing two hundred hour s of community service. On December 4, 1997, the trial court revoked the appellant’s probation and ordered that the ap pellant serve his sentence in the Tennessee Department of C orrection. Followi ng a review of the record in this case, w

e reverse the judgment of the trial court.
The trial court issued the pr obation revocation war rant on November 7, 1997, pursuant to the probation officer’s aff idavit. The probation officer alleged in his affidavit that the appellant had been ar rested and charged with several drug-rel ated offenses, had failed to perf orm any community service, and owed $ 1624.00 in court costs.
The trial court issued the pr obation revocation hearing on November 25, 1997. At the hearing, that Stat e presented the testimony of Cl iff Slayton, the appellant’ s probation officer. Mr. Slayton testified tha t the appellant was assi gned to him on May 13, 1996. He further stated that he had revie wed the conditions of the appellant’s probation w ith the appellant and that the appel lant had affirmed that he understood those conditions. Mr. Slayton confirmed that the appellant had been arrested and charged with several drug-related offenses and that those case s were still pending. Additi onally, he confirmed that the appe llant had not performed any1 Mr. Slayton’s test imony concernin g the appe llant’s failu re to perfo rm comm unity service was el icited by defense couns el during cross exam ination. Mr. Slayton testified that Mr. David Deavors, the Public Ser vice W ork Coord inator, was mon itoring the ap pellant’s co mm unity service activity and s ubm itting a repo rt to him each month.

2 The State, in or

der t o rel y on arrests as a vi olat ion t

o revo ke prob ation , mu st pro duc e evid enc e in the usual form of testimon y to establish probable cause a probationer has com mitted another offense.” State v. Elli son , No. 01C1-9708-CR-00361,1998 WL 272955, at *2 (Tenn. Crim. App. At Nashville, May 29, 1998). In this case, the State presented no testi mony or evidence other than the mere fact of the appel lant’ s arrests. “Being arrested and char ged with a cr ime is nota violation of a condition of the appellant’s probation.” State v. Carter , No. 03C01-9506-CR-00159, 1996 W L 175 969 , at *2 ( Ten n. Cr im. A pp. a t Kno xville, A pril 16, 1996).

3 The pros ecu tor ar gue s to th e trial ju dge that, g ene rally, so me community service is scheduled each mon th during the probation al period. However, argument by counsel does not

constit ute evidence. State v. Robe rts , 755 S.W. 2d 833,836 (Tenn. Cr im. App. 1988) 3

community service dur ing the almost eighteen months of his probation. 1 Finally, he testified that the appellant curr ently owed $ 1,624.00 in fin es and court costs. However, he conceded th at the appellant had original ly owed $ 3,289.00 and w as more or less on schedule with respect to the payment of these fine s and costs. He concluded that he had primaril y issued the warrant due to the appellant’s recent arrest.
In revoking the appell ant’s probation, the trial court declined to consider the charges pending agains t the appellant. 2 The trial court revoked the appellant’s probation due to his failure to perform any community serv ice. On appeal, the appellant argues that, because Mr. Slayton did not testify concerning the appe llant’s schedule for completing community service and because the Pub lic Service Work Coordinator did not testify at the probation revocati on hearing, the record does not support the trial court’ s exercise of discreti on. 3 Essentially, the appel lant argues that eighteen months of his probationary period remaine d in which he could complete the two hundred hours of community service or dered by the trial cour

t.
A trial court may rev

oke a defendant’s probation when i t finds that the probationer has violated the conditions of probation. See Tenn. Code Ann.§ 40-35- 310 (1997). In determined w hether or not to order rev ocation, the trial judge need not find beyond a reasonable doubt th at a violation of the conditi ons of probation4 has occur red. The existence of a viola tion nee d only be su pported by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311 (d) (1996). On appeal, the recor d must de monstra te that t he trial ju dge has no t acted a rbitraril y, and has exercised consci entious judgment. State v. Harkins , 811 S.W. 2d 79,82 (Tenn. 1991): State v. Gregory , 946 S.W. 2d 829,832 (Tenn. Crim. App. 1997). In other words, this cour

t will not rever

se the judgment of the trial cou rt absent an abuse of discretion, reflected i n the record by an absence of su bstantial evidence to support the trial judge’ s findings. Id

.
We must agree with the appellant that ther e is an absence of substantial evidence in the record t o support the judgment of the tri al court. As note above, while the State need not establish a violation of probation beyond a reaso nable doubt, the State must present sufficient evidence to permit a conscientious judgment by the trial c

ourt. In the instant case, the record reflects only that the appellant was on schedule i n paying court costs ordered by the court and had sufficient time remaining on pro bation in which to complet e his community servi ce. The order of probation does not reflect the imposition of any schedule according to which the appellant w

as to complete his community service. The State decli ned to present testimony by ei ther Mr. Slayton or M r. Deavors concerni ng a schedule of community service. I ndeed, Mr. Slayton’s tes timony suggested that he would not have issued the probation violation warrant solely on the basis of the appellant’s failure to complete any porti on of his community servi ce.

In State v. Stubblefield , No. 02C01-9509-CC-00267, 1997 WL 335025, at * 2 (Tenn. Crim. App. At Jackson, June 19, 1997), we observ ed that “it is fundamental to our system of justice thr ough due process that persons who are to suffer penal sanctions” have reasonabl e notice of conduct that wil l constitute a violati on of probation. The record is dev oid of any evidence that the appellant was notified that he must perform his community service during the first half of his prob ationary5 period or according to a predetermined schedule. Accor dingly, we rev

erse the judgment of the trial court.

NORMA MCGEE OGLE, J udge

CONCUR:
JOHN H PEAY, Judge

JOSEPH M. TIPT ON, Judge