IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED MARCH 1998 SESSION April 29, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. 03C01-9703-CC-00093 ) BLOUNT COUNTY ) Appellee, ) Hon. D. Kelly Thomas, Jr., Judge ) vs. ) (PROBATION VIOLATION) ) No. C-7795 SCOTT ANDERSON, ) ) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
LAURA RULE HENDRICKS JOHN KNOX WALKUP Eldridge, Irvine & Hendricks Attorney General & Reporter 606 West Main Street, Suite 350 P.O. Box 84 GEORGIA BLYTHE FELNER Knoxville, TN 37901-0084 Assistant Attorney General Cordell Hull Building, 2nd Floor RAYMOND MACK GARNER 425 Fifth Avenue North District Public Defender Nashville, TN 37243-0493
NATALEE HURLEY MICHAEL L. FLYNN Assistant Public Defender District Attorney General 415 High Street Maryville, TN 37804 PHILIP MORTON Assistant District Attorney General 363 Court Street Maryville, TN 37804
OPINION FILED:_______________
AFFIRMED
CORNELIA A. CLARK Special Judge
OPINION The appellant, Scott Anderson, appeals as of right from the revocation
of his probation by the Blount County Circuit Court. He argues that the trial
court abused its discretion by permitting hearsay testimony during his
revocation hearing and by failing to make adequate findings. We affirm the
judgment of the trial court.
On September 13, 1993, appellant was indicted for inhaling or
possessing paint for unlawful purposes, a Class A misdemeanor. On October
19, 1993 he entered a plea of guilty and received a sentence of eleven months
twenty-nine days. The sentence was suspended and he was placed on
supervised probation for eleven months twenty-nine days. The judgment order
reflects that this sentence was run consecutive to the sentence received in
case number C-7089 in the Blount County Circuit Court. On November 23,
1993, the trial court entered an additional order amending the judgment to
reflect that appellant’s time “be consecutive to his General Sessions cases and
not to start on November 17, 1993.”
On October 30, 1996, a probation violation warrant was issued,
charging appellant with violating the terms of probation by failing to report to
his probation officer, failing to reside at the address he had provided the
officer, failing to report a change of employment, failing to attend GED classes,
failing to obtain an alcohol/drug assessment, and failing to pay court costs and
supervision fees. A revocation hearing was conducted February 24, 1997.
Probation officer Carolyn Brewer testified at the hearing that she met
with appellant on August 12 and September 5, 1996. On August 12 he stated
he would be living with his wife and son. On September 5, 1996 the appellant
reported that he had moved to his mother’s home. The appellant failed to
report for his scheduled October 2 meeting, and the probation officer began
searching for him. On October 3 Officer Brewer telephoned appellant’s mother
and was told that he did not live there and had not lived there since being
released from jail on August 1. Brewer also testified that the appellant never
provided any confirmation that he had attended GED classes or completed a drug alcohol assessment. Brewer also telephoned appellant’s employer. The
employer informed Officer Brewer that the appellant had reported to work for
only two or three weeks and then had failed to report since that time. Brewer
sent a letter to the appellant on October 9, informing him that his next
appointment was scheduled for October 16. The appellant failed to appear for
this scheduled appointment as well. The probation violation warrant was filed
thereafter.
It is within the trial court’s discretion to revoke an appellant’s probation if
it finds by a preponderance of the evidence that the appellant has violated a
condition of his probation. Tenn. Code Ann. §§40-35-310, -311(d); State v.
Mitchell, 810 S.W. 2d 733, 735 (Tenn. Crim. App. 1991). For an appellate
court to reverse a trial court’s revocation of probation, it must be demonstrated
that the trial court has abused its discretion, and that the record contains no
substantial evidence that a violation of the conditions of probation has
occurred. State v. Harkins, 811 S.W. 2d 79, 82 (Tenn. 1991).
Upon a finding of a violation, the trial court is vested with the statutory
authority to “revoke probation and suspension of sentence and cause the
appellant to commence the execution of the judgment as originally entered.”
Tenn. Code Ann. §40-35-311(d). See State v. Duke, 902 S.W. 2d 424, 427
(Tenn. Crim. App. 1995). Furthermore, when probation is revoked, “the original
judgment so rendered by the trial court shall be in full force and effect from the
date of the revocation of such suspension.” Tenn. Code Ann. §40-35-310
(1990).
In this case appellant claims he has been denied at least two important
rights guaranteed him by the United States Supreme Count in Gagnon v.
Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973), when a state
attempts to remove his probationary status and have him incarcerated: (1) the
right to confront and cross-examine adverse witnesses unless the hearing
officer specifically finds good cause for not allowing confrontations; and (2) a
written statement by finder of fact as to the evidence relied on and the reasons
for revoking the probation. See also Practy v. State, 525 S.W. 2d 677, 680
(Tenn. Crim. App. 1974). Appellant first contends that the trial court abused its discretion in
revoking appellant’s probation because the court relied on hearsay evidence
from the probation officer, thus violating his right of confrontation. Concerning
the testimony about conversations between the probation officer and the
appellant’s mother and former employer, reliable hearsay is permitted to be
introduced at probation revocation hearings, subject to the appellant’s right to
rebut. Tenn. Code Ann. §40-35-209(b); State v. Wade, 863 S.W. 2d 406, 408-
410 (Tenn. 1993). The appellant in this case made no effort to correct any
inaccuracies he may have perceived in the proof presented at the hearing.
Further, the appellant did not object to the probation officer’s testimony about
those telephone conversations. He therefore waived his right to raise this
issue on appeal. State v. Walker, 910 S.W. 2d 381, 396 (Tenn. 1995);
Sanders v. Tennessee Board of Parole, 944 S.W. 2d, 395, 397 (Tenn. App.
1996).
The proof in this record is sufficient to support a finding that the
appellant violated the terms and conditions of his probation. It is undisputed
that he missed two required meetings with his probation officer. The probation
officer’s testimony about appellant’s failure to report, failure to provide accurate
information about the address at which he resided, failure to report a change of
employment, failure to provide proof of attendance of GED classes, and failure
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED MARCH 1998 SESSION April 29, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. 03C01-9703-CC-00093 ) BLOUNT COUNTY ) Appellee, ) Hon. D. Kelly Thomas, Jr., Judge ) vs. ) (PROBATION VIOLATION) ) No. C-7795 SCOTT ANDERSON, ) ) Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
LAURA RULE HENDRICKS JOHN KNOX WALKUP Eldridge, Irvine & Hendricks Attorney General & Reporter 606 West Main Street, Suite 350 P.O. Box 84 GEORGIA BLYTHE FELNER Knoxville, TN 37901-0084 Assistant Attorney General Cordell Hull Building, 2nd Floor RAYMOND MACK GARNER 425 Fifth Avenue North District Public Defender Nashville, TN 37243-0493
NATALEE HURLEY MICHAEL L. FLYNN Assistant Public Defender District Attorney General 415 High Street Maryville, TN 37804 PHILIP MORTON Assistant District Attorney General 363 Court Street Maryville, TN 37804
OPINION FILED:_______________
AFFIRMED
CORNELIA A. CLARK Special Judge
OPINION The appellant, Scott Anderson, appeals as of right from the revocation
of his probation by the Blount County Circuit Court. He argues that the trial
court abused its discretion by permitting hearsay testimony during his
revocation hearing and by failing to make adequate findings. We affirm the
judgment of the trial court.
On September 13, 1993, appellant was indicted for inhaling or
possessing paint for unlawful purposes, a Class A misdemeanor. On October
19, 1993 he entered a plea of guilty and received a sentence of eleven months
twenty-nine days. The sentence was suspended and he was placed on
supervised probation for eleven months twenty-nine days. The judgment order
reflects that this sentence was run consecutive to the sentence received in
case number C-7089 in the Blount County Circuit Court. On November 23,
1993, the trial court entered an additional order amending the judgment to
reflect that appellant’s time “be consecutive to his General Sessions cases and
not to start on November 17, 1993.”
On October 30, 1996, a probation violation warrant was issued,
charging appellant with violating the terms of probation by failing to report to
his probation officer, failing to reside at the address he had provided the
officer, failing to report a change of employment, failing to attend GED classes,
failing to obtain an alcohol/drug assessment, and failing to pay court costs and
supervision fees. A revocation hearing was conducted February 24, 1997.
Probation officer Carolyn Brewer testified at the hearing that she met
with appellant on August 12 and September 5, 1996. On August 12 he stated
he would be living with his wife and son. On September 5, 1996 the appellant
reported that he had moved to his mother’s home. The appellant failed to
report for his scheduled October 2 meeting, and the probation officer began
searching for him. On October 3 Officer Brewer telephoned appellant’s mother
and was told that he did not live there and had not lived there since being
released from jail on August 1. Brewer also testified that the appellant never
provided any confirmation that he had attended GED classes or completed a drug alcohol assessment. Brewer also telephoned appellant’s employer. The
employer informed Officer Brewer that the appellant had reported to work for
only two or three weeks and then had failed to report since that time. Brewer
sent a letter to the appellant on October 9, informing him that his next
appointment was scheduled for October 16. The appellant failed to appear for
this scheduled appointment as well. The probation violation warrant was filed
thereafter.
It is within the trial court’s discretion to revoke an appellant’s probation if
it finds by a preponderance of the evidence that the appellant has violated a
condition of his probation. Tenn. Code Ann. §§40-35-310, -311(d); State v.
Mitchell, 810 S.W. 2d 733, 735 (Tenn. Crim. App. 1991). For an appellate
court to reverse a trial court’s revocation of probation, it must be demonstrated
that the trial court has abused its discretion, and that the record contains no
substantial evidence that a violation of the conditions of probation has
occurred. State v. Harkins, 811 S.W. 2d 79, 82 (Tenn. 1991).
Upon a finding of a violation, the trial court is vested with the statutory
authority to “revoke probation and suspension of sentence and cause the
appellant to commence the execution of the judgment as originally entered.”
Tenn. Code Ann. §40-35-311(d). See State v. Duke, 902 S.W. 2d 424, 427
(Tenn. Crim. App. 1995). Furthermore, when probation is revoked, “the original
judgment so rendered by the trial court shall be in full force and effect from the
date of the revocation of such suspension.” Tenn. Code Ann. §40-35-310
(1990).
In this case appellant claims he has been denied at least two important
rights guaranteed him by the United States Supreme Count in Gagnon v.
Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973), when a state
attempts to remove his probationary status and have him incarcerated: (1) the
right to confront and cross-examine adverse witnesses unless the hearing
officer specifically finds good cause for not allowing confrontations; and (2) a
written statement by finder of fact as to the evidence relied on and the reasons
for revoking the probation. See also Practy v. State, 525 S.W. 2d 677, 680
(Tenn. Crim. App. 1974). Appellant first contends that the trial court abused its discretion in
revoking appellant’s probation because the court relied on hearsay evidence
from the probation officer, thus violating his right of confrontation. Concerning
the testimony about conversations between the probation officer and the
appellant’s mother and former employer, reliable hearsay is permitted to be
introduced at probation revocation hearings, subject to the appellant’s right to
rebut. Tenn. Code Ann. §40-35-209(b); State v. Wade, 863 S.W. 2d 406, 408-
410 (Tenn. 1993). The appellant in this case made no effort to correct any
inaccuracies he may have perceived in the proof presented at the hearing.
Further, the appellant did not object to the probation officer’s testimony about
those telephone conversations. He therefore waived his right to raise this
issue on appeal. State v. Walker, 910 S.W. 2d 381, 396 (Tenn. 1995);
Sanders v. Tennessee Board of Parole, 944 S.W. 2d, 395, 397 (Tenn. App.
1996).
The proof in this record is sufficient to support a finding that the
appellant violated the terms and conditions of his probation. It is undisputed
that he missed two required meetings with his probation officer. The probation
officer’s testimony about appellant’s failure to report, failure to provide accurate
information about the address at which he resided, failure to report a change of
employment, failure to provide proof of attendance of GED classes, and failure
to provide proof of obtaining an alcohol/drug assessment, is adequate to
support a finding by a preponderance of the evidence that the appellant
violated the terms and conditions of his probation. This issue is without merit.
Appellant’s second issue concerns the trial court’s failure to make
adequate written findings. The State contends that the transcript of the court’s
oral findings do substantially comply with the procedural requirements.
See State v. Delp, 614 S.W. 2d 395, 398 (Tenn. Crim. App. 1980). The trial
court’s oral findings were brief, but specifically included references about what
the appellant did not do, and that he “disappeared,” which this court
understands to refer to his failure to report to his probation officer. Although
the findings in this case are not nearly as extensive as those of the trial court in
Delp, we believe that the warrant for violation of probation, the authenticated verbatim transcript, and the order of revocation, in combination, substantially
comply with the requirement for a written statement of findings. See State v.
Jackie Crowe, No. 03C01-9606-CC-00225, McMinn County (Tenn. Crim. App.,
Knoxville, July 29, 1997).
For the reasons set forth above, the judgment of the trial court is
affirmed.
_____________________________ CORNELIA A. CLARK SPECIAL JUDGE
CONCUR:
_______________________________ JOHN H. PEAY JUDGE
_______________________________ PAUL G. SUMMERS JUDGE
AT KNOXVILLE
MARCH 1998 SESSION
STATE OF TENNESSEE, ) C.C.A. 03C01-9703-CC-00093 ) BLOUNT COUNTY ) Appellee, ) Hon. D. Kelly Thomas, Jr., Judge ) vs. ) (PROBATION VIOLATION) ) No. C-7795 SCOTT ANDERSON, ) ) Appellant. )
JUDGMENT
Came the appellant, Scott 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 Circuit Court of Blount 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 Blount County for execution of the judgment of that court and for collection of costs accrued below.
Costs of this appeal will be paid by the appellant Scott Anderson for which let execution issue.
PER CURIAM
John H. Peay, Judge Paul G. Summers, Judge Cornelia A. Clark, Special Judge