Anderson v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 30, 1997
• Docket: 03C01-9606-CC-00245
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MARCH 1997 SESSION FILED April 30, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

TIMOTHY ANDERSON, ) C.C.A. No. 03C01-9606-CC-00245 ) GREENE COUNTY Appellant, ) ) Hon. James E. Beckner, Judge VS. ) ) (PROBATION VIOLATION) STATE OF TENNESSEE, ) Nos. 9694, 9695, 9706 BELOW ) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

MICHAEL A. WALCHER JOHN KNOX WALKUP Office of the Public Defender Attorney General and Reporter 1609 College Park Drive Box 11 MICHAEL J. FAHEY, II Morristown, TN 37813-1618 Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

C. BERKELEY BELL, JR. District Attorney General 109 S. Main Street Suite 501 Greeneville, TN 37743

JOHN F. DUGGER, JR. Assistant District Attorney General Hamblen County Justice Center 510 Allison Street Morristown, TN 37814

OPINION FILED:__________________

AFFIRMED

CORNELIA A. CLARK, Special Judge OPINION

In this appeal the appellant contends that the trial court abused its discretion

in revoking the defendant’s probation and in requiring incarceration when the

revocation was based on his inability to pay costs. We disagree and therefore

affirm the decision of the lower court.

In May 1990 the appellant entered guilty pleas to three counts of sale of

cocaine, a Schedule II controlled substance. On each count he was sentenced as

a Range I standard offender to five years and was required to pay a $3,000.00 fine.

The sentences were run concurrently to one another.

Pursuant to T.C.A. §40-20-206, on October 22, 1990, defendant was placed

on probation by the Department of Correction for the remainder of his sentence. In

June 1992 a probation violation warrant was issued against appellant, charging him

with having received new charges, using intoxicants to excess, and failing to pay

restitution and fines. By order entered August 27, 1992, appellant’s probation was

revoked. By order entered September 15, 1992, appellant was ordered to serve his

sentence at the John R. Hay House Community Corrections Program following

alcohol and drug treatment at another facility. By order entered March 31, 1993,

defendant’s probation was reinstated with an extended expiration date of April 23,

1995, subject to his obligation to pay restitution, fines, and costs on a monthly

schedule.

On April 11, 1995, a show cause order was issued for appellant’s failure to

pay the restitution ordered in his probation agreement. By order entered April 17,

1995, appellant’s probation was revoked, then reinstated and extended for one

year, with a specific condition that he pay the costs, fines and jail fees at the rate

of $100.00 per month.

2 On September 22, 1995, a probation revocation warrant was issued for

appellant alleging that he failed to pay costs, fines and jail fees according to the

previously-entered order. A probation revocation hearing was held November 15,

1995. Appellant, represented by counsel, appeared at that hearing. He testified

that he had no physical or health problems that prevented his employment. He had

held a number of jobs during the various times he was on probation. Over a

five-year period he had paid only $10.00 into the court. At the conclusion of the

hearing, the court revoked the appellant’s probation and ordered him to serve the

remainder of his sentence in confinement.

The petitioner cites Bearden v. Georgia, 461 U.S. 660, 76 L.Ed.2d 221, 103

S.Ct. 2064, 76 L.Ed.2d 221 (1983) in support of his position that his probation

revocation was unlawful. However, his reasoning is misguided. Under Bearden, a

court may not revoke a defendant’s probation for failing to pay fines and costs until

it has determined the underlying reason for nonpayment. Id. at 672. If the

nonpayment is willful, probation may properly be revoked. Id. However, if the

nonpayment is due to an inability to pay, the court may not imprison the defendant.

Massey v. State, 929 S.W.2d 399, 402 (Tenn. Crim. App. 1996).

It is appellant’s position that his failure to pay restitution, fines and costs was

not a willful one. The record does not support that position. Appellant

acknowledged that he had no physical problems which made it difficult to work. He

had been employed in a number of part-time or full-time positions over the several

years of probation. However, not only had he failed to pay the agreed-upon monthly

amount of restitution during that period, he actually had paid a total of only $10.00

into court.

3 Under the facts and circumstances found in this record, we are in full accord

with the findings of the trial court. The court did not act arbitrarily or abuse its

discretion in revoking the probation of the appellant and requiring him to serve the

remainder of his sentence. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State

v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). The judgment of the

trial court is affirmed.

__________________________________ CORNELIA A. CLARK SPECIAL JUDGE

CONCUR:

__________________________________ JOHN H. PEAY JUDGE

__________________________________ PAUL G. SUMMERS JUDGE

4 IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE

TIMOTHY ANDERSON, ) C.C.A. No. 03C01-9606-CC-00245 ) GREENE COUNTY Appellant, ) ) Hon. James E. Beckner, Judge VS. ) ) (PROBATION VIOLATION) STATE OF TENNESSEE, ) Nos. 9694, 9695, 9706 BELOW ) Appellee. )

JUDGMENT

Came the appellant, Timothy Anderson, by counsel and also came the attorney general on behalf of the state, and this case was heard on the record on appeal from the Criminal Court of Greene County; and upon consideration thereof, this court is of the opinion that there is no reversible error in the judgment of the trial court.

Our opinion is hereby incorporated in this judgment as if set out verbatim.

It is, therefore, ordered and adjudged by this court that the judgment of the trial court is AFFIRMED, and the case is remanded to the Criminal Court of Greene County for execution of the judgment of that court and for collection of costs accrued below.

It appears that the appellant is indigent. Costs of this appeal will be paid by the appellant.

PER CURIAM

John H. Peay, Judge Paul G. Summers, Judge Cornelia A. Clark, Special Judge