State of Tennessee v. Michael D. Hawkins

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 6, 1999
• Docket: 03C01-9808-CC-00309
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE FILED JUNE SESSION, 1999 July 6, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) ) No. 03C01-9808-CC-00309 Appellee ) ) BLOUNT COUNTY vs. ) ) Hon. D. Kelly Thomas, Jr., Judge MICHAEL D. HAWKINS, ) ) (Revocation of Probation) Appellant )

For the Appellant: For the Appellee:

Mack Garner Paul G. Summers District Public Defender Attorney General and Reporter Natalee S. Hurley Asst. District Public Defender 419 High Street Maryville, TN 37804 Georgia Blythe Felner Assistant Attorney General (AT TRIAL) Criminal Justice Division 425 Fifth Avenue North 2d Floor, Cordell Hull Building Gerald L. Bulley, Jr. Nashville, TN 37243-0493 Contract Appellate Defender P. O. Box 1708 Knoxville, TN 37901-1708 C. Berkeley Bell, Jr. District Attorney General (ON APPEAL) Edward P. Bailey, Jr. Asst. District Attorney General 363 Court Street Maryville, TN 37804

ORDER FILED:

AFFIRMED PURSUANT TO RULE 20, TENN. CT. CRIM. APP. R.

David G. Hayes Judge ORDER

The appellant, Michael D. Hawkins, appeals as of right from the trial court’s

revocation of his suspended sentence. Following a hearing, the trial court found

that the appellant had violated conditions of his probation and ordered execution of

the entire sentence as originally entered. On appeal, the appellant contends that

the trial court should have granted intensive probation or an alternative sentence,

specifically Community Corrections.1

Based on our review of the briefs and of the entire record in this cause, we

conclude that this is an appropriate case for affirmance under Rule 20, Tenn. Ct.

Crim. App. R.

In April of 1998, the appellant pled guilty to one count of theft of property, a

Class D felony, and received a split confinement sentence of two years with 60 days

to be served in the county jail followed by one year and ten months supervised

probation.2 After his release from the county jail on May 29, 1998, the appellant

began supervision.

On July 6, 1998, the trial court issued a probation violation warrant alleging

violation of seven conditions of probation. The violations included: new arrests and

convictions; failure to pay court costs, restitution, or probation fees; failure to

maintain employment or report that he quit his job; failure to maintain a steady

residence or abide by his curfew; and failed to report for scheduled appointments

1 W e not e tha t, in the appe llant’s brief, he ar gue s tha t princ iples o f sen tenc ing ap ply with in a probation revocation hearing. This position is misplaced. The application of sentencing principles a ppropria te to the ap pellant’s ca se con cluded u pon im position of his sente nce. See State v. Stevie Q. Taylor, No. 02C01-9504-CC-00108 (Tenn. Crim. App. at Jackson, May 1, 1996).

2 The appellant also pled guilty to leaving the scene of an accident, a Class C misdemeanor, receiving 30 days in the county jail to be served concurrently with his felony senten ce.

2 with his probation officer. At the revocation hearing, the appellant admitted all

seven violations, except that he had paid $150 toward court costs, offering various

unrepentant explanations for his violations, e.g., “I really didn’t think it mattered” or “I

really didn’t think about it.” The trial court found that,

[t]he proof presented establishes beyond any question that [appellant] has violated his probation. . . . [I]t is apparent to me that [appellant] does not take this process seriously at all. . . . I think there is virtually no possibility that he could successfully serve this sentence on probation with his present attitude.

The revocation of probation is committed to the sound discretion of the trial

court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If the trial

court finds by a preponderance of the evidence that a probation violation has

occurred, it has the right to revoke probation and cause the probationer to

commence the execution of judgment as originally entered. Tenn. Code Ann. § 40-

35-310, -311(d) (1997). This court will not find that a trial court has abused its

discretion unless the record contains no substantial evidence to support the trial

court’s conclusion that the probation should be revoked. State v. Harkins, 811

S.W.2d 79, 82 (Tenn. 1991). The evidence at the revocation hearing need only

show that the trial court exercised a conscientious and intelligent judgment in

making the decision to revoke probation. State v. Leach, 914 S.W.2d 104, 106

(Tenn. Crim. App. 1995).

Based on the record before us, it is exceedingly clear that the trial court did

not abuse its discretion in revoking the appellant’s probation and ordering

reinstatement of the original sentence imposed with confinement in the Department

of Correction. Accordingly, this court finds that the judgment of the trial court

should be affirmed pursuant to Rule 20, Tenn. Ct. Crim. App. R.

3 ____________________________________ DAVID G. HAYES, Judge

CONCUR:

_____________________________________ JOHN H. PEAY, Judge

_____________________________________ JOHN EVERETT W ILLIAMS, Judge