James Judd v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 12, 1999
• Docket: 01C01-9805-CR-00204
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED DECEMBER 1998 SESSION February 12, 1999

Cecil W. Crowson Appellate Court Clerk JAMES JUDD, ) ) C.C.A. NO. 01C01-9805-CR-00204 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. J. RANDALL WYATT, JR., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

DALE QUILLEN JOHN KNOX WALKUP 95 White Bridge Rd. Attorney General & Reporter Nashville, TN 37205 DARYL J. BRAND Asst. Attorney General Cordell Hull Bldg., 2nd Fl. 425 Fifth Ave., North Nashville, TN 37243-0493

VICTOR S. JOHNSON, III District Attorney General

CARRIE DAUGHTREY -and- KATRIN MILLER Asst. District Attorneys General Washington Square, Suite 500 222 Second Ave., South Nashville, TN 37201

OPINION FILED:

AFFIRMED

JOHN H. PEAY, Judge OPINION

The petitioner pled guilty to assault for which he received an eleven month,

twenty-nine day suspended sentence. The petitioner’s probation was subsequently

revoked for failure to comply with the terms of his probation. The petitioner appealed the

probation revocation and filed a post-conviction petition while the appeal was pending in

the Davidson County Criminal Court. The appeal and the post-conviction petition were

heard together in the Davidson County Criminal Court, where the petitioner’s probation

revocation was affirmed, and his petition for post-conviction relief was denied. The

petitioner now appeals. After a review of the record and applicable law, we affirm the

judgment of the lower court.

It is undisputed that the petitioner pled guilty to assault. However, the

general sessions judge, Judge Robinson, testified that when the petitioner pled guilty, he

believed the petitioner was pleading guilty to Class A misdemeanor assault. He

sentenced the petitioner to a suspended eleven month, twenty-nine day term in reliance

on this belief.

The petitioner contends that the affidavit with which he was charged only

alleges a Class B misdemeanor and therefore any sentence over six months would be

void. T.C.A. § 40-35-111(e)(2). However, the affidavit at issue alleges, in the alternative,

two Class A misdemeanors and one Class B misdemeanor with facts that would support

a conviction on any of the three charges.1 Therefore, the petitioner could have pled guilty

1 We note that pleadings in a general sessions court are not held to the same standard of strictness and pre cision as is required of pleadin gs in a co urt of reco rd. Stevens v. Moore , 139 S.W.2d 710, 712 (Tenn. Ct. App. 194 0).

2 to either a Class A or Class B misdemeanor.2 As such, the petitioner has not proven his

conviction to be void or voidable. Therefore, this contention is without merit.3

The petitioner next contends that the fiat ordering him to show cause why

his probation should not be revoked is illegal and renders the revocation of his probation

void. However, the petitioner does not deny that he violated his probation.

When a trial judge finds that a probationer has violated the conditions of his

or her probation, the trial judge has the authority to revoke probation. See T.C.A. § 40-

35-310. In determining whether or not to do so, the trial judge need not find beyond a

reasonable doubt that a violation of the terms of probation has occurred. The existence

of a violation need only be supported by a preponderance of the evidence. T.C.A. § 40-

35-311(d). We will not disturb the judgment of the trial judge in the absence of an abuse

of discretion. For this Court to find an abuse of the trial court’s discretion, the defendant

must demonstrate “that the record contains no substantial evidence to support the

conclusion of the trial judge that a violation of the conditions of probation has occurred.”

State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

In the petitioner’s case, the general sessions court found enough evidence

to support a revocation of probation. However, the petitioner challenges the general

sessions court’s use of a fiat ordering the petitioner to show cause why his probation

should not be revoked. The petitioner contends that this fiat illegally shifted the burden

of proof to the petitioner rather than the State. However, Judge Robinson testified that

2 Although the petitioner alleges that Judge Robinson testified that the affidavit charged a mere Class B misdemeanor, Judge Robinson further testified that the affidavit also alleged two Class A misd eme anors.

3 The petitioner further contends that the affidavit fails to give adequate notice of the charges and there fore violate s the “law o f the la nd” p rovis ion of our s tate c ons titution . How ever , as th e aff idavit clearly sets fo rth the cha rges ag ainst him , this conten tion is also w ithout m erit.

3 when a defendant wants a hearing to decide whether or not his probation should be

revoked, he will have a hearing and take sworn testimony from the probation officer and

sworn testimony from the defense. In the petitioner’s case, Judge Robinson found, after

hearing the evidence, that the petitioner had violated his probation. As the petitioner has

failed to show that this conclusion is not supported by substantial evidence in the record,

there was no abuse of discretion. As such, this contention is without merit.

Accordingly, we affirm the petitioner’s sentence and probation revocation.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPTON, Judge

______________________________ NORMA McGEE OGLE, Judge