### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs J

une 27, 2001
STATE OF TENNESSEE v. BOBBY GEN E TUCKER
Appeal from the Criminal Court for Cumberland County

No. 5408 Lillie Ann Sells, Judge

No. E2001-00017-CCA-R3-CD August 23, 2001 The defendant, Bobby Gene Tucker, appe als from the revocation of

his probation rec

eived for his conviction for driving under the influence of an intoxicant (DUI) after having served fifteen

days in confinement.He contends (1) that the revocation warrant and affidavit arevoid, thereby voiding his probation revocation and (2) that the trial court abused its discretionin sentencing him to serve the maximum term of eleven mo nths, twenty

-nine days w

ith credit for time served. We affirm the trial court.

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

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . and R OBERT W. W EDEMEYER , JJ., joined.

David Neal Brady, District Public Defender, and Cynthia S. L

yons, Assistant Public Defender, for the appellant, Bobby Gene Tucker.

Paul G. S umm ers , At tor ney General an d Reporter; Kim R. H elper, Assistant A

ttorney Ge

neral; William Edward

Gibson, District Attorney General; and Anthony J. Craighe ad, Assistant District Attorney General, for the appellee, State of Tennesse e.
OPINION
The defendant was convicted on June 25, 199 9. H e was sen ten ced t o el even mon ths , tw ent ynine days with

all but fifteen days suspended. Because he had not paid his fine

and court costs, h

is probation was extended in June 2000 for a period of six months. In October 2000, the revocation warrant in this case was iss

ued charging

that the defenda

nt admitted using ma

rijuana, failed

to submit to a drug sc

reen test, and fa

iled to pay a

ny fine and

court costs. At the revocationhearing, two probation officers testified. One said that the defendant had been asked to submit to a drug
screenbut that the defendant had left the probation office before the test was administer

ed. She also-2-

testified that during a subsequ ent telephone call, the defendant admitted recent use of marijuana. The other officer testified regarding a telephone call during whic h the defen dant admitted using marijuana. Although the defendant had not pa id on his fine a nd costs, the record reflects that the defe nda nt h ad b een m edi cal ly un abl e to rem ain emp loye d an d ha d ap pli ed fo r di sab ili ty.
The defendant testified that he left the probation office before com pleting the drug screen because he was unfamiliar with the process and was concerned that an accurate result would not be possible, stating that he was on various medicatio

ns. He denied admitting to the probation officers that he used marijuana. He also claimed that he subm itted to a drug test at Cumberland Medical Center and that the results were negative.

The trial court found

the probation off

icers to be cred

ibleand the defendant

to be unworthy of belief. The trial court found that the defendant violated conditions of his probation regarding drug
screens andthe use of drugs. The court ordered the defendant to serve the remainder of his sentence of eleven months, t

wenty-nine

days.

For the first time on appeal, the defendant attacks the revocation warrant and affidavit. He claims that because the affidavit neither alleges nor indicates that his originalprobationary period hadbeen exten ded, the warrant and all subsequent proceedings are void. He asserts that the revocationwarrant provided in Tenn. Code Ann. § 40-35-311(a) regarding probation violatio

n is to be governed as the equivalent of an arrest warrant. He then notes that the aff idavit for an arres t warrant must allege the e

ssential facts co

nstitu ting the offe nse. See Tenn. R. Cri m. P. 3, 4. In response, the state

contends that the fact that the defendant did not raise this issue in the trial court constitutes a waiver. Given the potential jurisdictional nature of the defendant’s claim, the state, citing two unpublished cases from this court, argues that Tenn. Code Ann. § 40-35-311(a) does not specify any requirements for

a revocation warrant and that the fact that the warrant was signed by the trial court meant that it was properly issued. See State v. Janie Cousett , No. W1999-01256-CCAR3-CD, Madison Count

y (Tenn. Cri

m. App. Feb. 10, 20

00); State v. Roger

Dale Chisam , No. 85- 194-III, Fra

nklin County (Tenn. Crim. App. Dec. 13, 1985).

In Cousett , this court held that the fact that the affidavit supporting the revocation warrant
was unsworn did not render the revocation proceedings void. Relying upon Chisam , it also held that the probation revocation warrant did not require an affidavit and was valid. In Chisam , the defendant
was prosecuted for a

ssault with intent to commit robbery and sought to exclude evidence taken from him when he was arrested on a probation revocation warrant. He sought suppression of the evidence, claiming in part that the war rant was not issued

in compliance with

the requirement

s of Rules 3 and 4 of the Tennessee Rules of Criminal Procedure. This court concluded that the probation revocation statut e, not t he Rul es, pr ovide s the a uthor ity for a tria l jud ge to i ssue r evoca tion warra nts. In thi s respect, it stated th at a

trial judge has the power to issue probation violation warrants without the necessity o

f an affidavit. We

question the validi

ty of these opinions relative to the arrest resulting from such a warrant. That is, we seriously doubt that a custodial arrest, i.e., a seizure of the person to the utmost degree throu gh state action, may occur without adequate probable cause supporte d by-3-

affidavit under constitution

al search and se

izure requireme

nts . In any event, this case may be resolved without su

ch an analy

sis.

We agree with Cousett

and Chisam to the extent that they recognize that revocation proceedings are not rendere d void merely

because the all

egations of fact that, if true, justify revocationwere not placed in affidavit form. The constitutional validity of the arrest, alone, has no relevance to a probation rev ocation pr oceeding abou t which the defen

dant has receive

d adequate notice of the charge

s against him. Such is obviously

the case before us. The evidence used to prove the de fendant’s violation of his probation conditions did not derive from his arrest upon the revocation warrant. The revocation proceeding was valid.

Relative to sentencing, th e defendant con

tends that sentenc

ing him to the maximum length of confinement was excessive. He poi nts to his having successfully completed approximately fifte en months of supervised probation without incident andthe fact that his lack of payment on the fine and court cos ts w as b ased upo n in abi lit y, not willful refusal. He asserts again that he did not understand the drug test proce

dure and that he tr

ied to remedy

his mistake by submitting to a drug screen elsewhere. The defendant a sserts that he has

proven himself “w

illing to comply with

the conditions of probation, making incarceration unnecessary a nd excessive punishment.”

The decision to revoke probation and to require confinement for the whole sen

tence is within the sound discretion of the trial court, and its judgment will be reversed only upon a showing of an abuse of discretion, re

flected in the re

cord by abs

ence of substanti

al e vidence to support the trial court’s finding. See State v. Hunter , 1 S.W.3d 643, 648 (Tenn. 1999); State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). The defendant’s allegation of facts before us is futile – the trial court found that his testim

ony was not be

lievable. Nothing

in the record preponderates otherwise. Obv iou sly, a person on probationfor DUI who is using marijuana and refusing to comply with the dr ug testing requirements of his probation officer does not instill confidence about hi s futur e compliance with th

e law. We conclude

that substantial ev

idence exists

to supportthe trial court’s decision. The judgment of the trial court is affirmed.

___________________________________ JOSEPH M. TIPTON, JUDGE