State v. Bobbie Weathers

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 22, 1998
• Docket: 02C01-9703-CC-00123
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY SESSION, 1998 FILED January 22, 1998 STATE OF TENNESSEE, ) Cecil Crowson, Jr. ) No. 02C01-9703-CC-00123 Appellate C ourt Clerk Appellee ) ) HENDERSON COUNTY vs. ) ) Hon. Franklin Murchison, Judge BOBBIE JEAN WEATHERS, ) ) (Revocation of Community Appellant ) Corrections)

For the Appellant: For the Appellee:

Clifford K. McGowan, Jr. John Knox Walkup Attorney at Law Attorney General and Reporter 113 North Court Square P. O. Box 26 Elizabeth T. Ryan Waverly, TN 37185 Assistant Attorney General Criminal Justice Division (On Appeal) 450 James Robertson Parkway Nashville, TN 37243-0493

George Morton Googe District Public Defender James G. (Jerry) Woodall 227 West Baltimore Street District Attorney General Jackson, Tn 38301

(At Trial and of Counsel Donald H. Allen on Appeal) Asst. District Attorney General P. O. Box 2825 Jackson, TN 38301

OPINION FILED:

AFFIRMED PURSUANT TO RULE 20

David G. Hayes Judge OPINION

The appellant, Bobbie Jean Weathers, appeals as of right the judgment of

the Henderson County Circuit Court revoking her Community Correction sentences.

Prior to her revocation, the appellant was serving an effective fifteen year

Community Corrections sentence resulting from ten felony convictions. Finding the

alleged violations supported by the proof, the trial court revoked the appellant’s

Community Corrections sentences and ordered that the balance of her sentences

be served in the Department of Correction. The appellant appeals this ruling,

contending that, rather than a penitentiary sentence of total confinement, she should

have received an alternative sentence which would have permitted her to remain in

the community.

In 1991, the appellant was convicted of two counts of theft over $500, theft

under $500, and aggravated burglary. For these convictions, the appellant received

an effective seven year sentence and was placed on “intensive probation.” In 1993,

while still on probation, she was convicted of three counts of passing forged paper

and received concurrent four year sentences. These sentences were ordered to be

served consecutively to her effective sentence of eleven years previously imposed.

In addition, the appellant’s probation status was revoked and her effective eleven

year sentence was ordered to be served in Community Corrections. While serving

her Community Corrections sentence, the appellant, on February 20,1995, was

again convicted of burglary and theft of property over $1,000. Pursuant to the plea

agreement, no revocations occurred and she received two concurrent four year

sentences to be served consecutively to her prior effective eleven years sentence.

The appellant was permitted to remain in the Community Corrections program to

complete her sentences which now total fifteen years. Thirty-six days after pleading

guilty to the burglary and theft charges, the appellant tested positive for cocaine.

This violation was followed by the following violations: failure to obey the law -

misdemeanor conviction, changing her residence without permission, failing to

report to her case officer, failing to report the new arrest, and failure to pay cost and

2 restitution as ordered. The appellant does not contest these violations. She insists,

however, that she should be granted an alternative sentence which would permit her

to maintain employment and care for her minor children.

The law concerning revocation of a community corrections sentence is clear.

After a sentence is revoked, “the [trial] court may resentence the defendant to any

appropriate sentencing alternative, including incarceration, for any period of time up

to the maximum sentence provided for the offense committed, less any time actually

served in any community-based alternative to incarceration.” Tenn. Code Ann. §

40-36-106(e)(4) (1996 Supp.) (emphasis added).

The appellant’s flagrant abuse of her judicially granted liberty is indefensible.

The primary goal of noninstitutional punishment is to provide a period of grace in

order to assist the rehabilitation of a penitent offender. See Burns v. United States,

287 U.S. 216, 220, 53 S.Ct. 154, 155 (1932). Clearly, the appellant’s past conduct

demonstrates that she is unrepentant and efforts to rehabilitate have been rejected.

We conclude, as did the trial court, that no additional “period of grace” is warranted.

The judgment of the trial court is affirmed pursuant to Rule 20, Rules of the

Tennessee Court of Criminal Appeals.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

____________________________________ JOE B. JONES, Presiding Judge

____________________________________ JOE G. RILEY, Judge