State v. Gray

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 24, 1998
• Docket: 01C01-9702-CC-00058
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED JANUARY 1998 SESSION March 24, 1998

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. NO. 01C01-9702-CC-00058 Appellee, ) ) LAWRENCE COUNTY VS. ) ) HON. JAMES L. WEATHERFORD, WILLIAM HOWARD GRAY, ) JUDGE ) Appellant. ) (Probation Revocation)

FOR THE APPELLANT: FOR THE APPELLEE:

SHARA A. FLACY JOHN KNOX WALKUP Public Defender Attorney General & Reporter

DANIEL J. RUNDE GEORGIA BLYTHE FELNER Asst. Public Defender Counsel for the State P. O. Box 1208 John Sevier Bldg. Pulaski, TN 38478 425 Fifth Ave. North (On Appeal) Nashville, TN 37243-0493

JAMES DANIEL FREEMON MIKE BOTTOMS West Gaines St. District Attorney General Lawrenceburg, TN 38464 (At the Hearing) JAMES G. WHITE Asst. District Attorney General P. O. Box 279 Lawrenceburg, TN 38464

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge OPINION

The defendant was indicted on June 8, 1993, on charges of incest and

statutory rape. He pled guilty to the incest charge, and the statutory rape charge was

dismissed. By agreement, the defendant received a sentence of five years in the

Department of Correction. This sentence was fully suspended and the defendant was

placed on immediate probation.

On August 19, 1996, a revocation warrant was issued and following a

hearing on September 16, 1996, the trial court revoked the defendant’s probation and

ordered him to serve the entire sentence. The defendant now appeals this revocation

contending that the trial judge abused his discretion in revoking probation; that the trial

judge erred in “engaging in extrajudicial proceedings or by and through engaging in

collateral considerations”; in revoking the defendant’s probation when he relied on the

advice of counsel; and that T.C.A. § 36-3-101, which prohibits marriage by a person to

his adopted sister, is unconstitutional. We do not agree with the defendant’s contentions

and, therefore, affirm the judgment below.

When a trial judge finds that a petitioner 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 this case, it is clearly within the trial court’s discretion to revoke a defendant’s

probation and order the original sentence to be served. See State v. Duke, 902 S.W.2d

424, 427 (Tenn. Crim. App. 1995).

The violation warrant issued in this case alleged that the defendant failed

to obtain the consent of his probation officer before leaving the county or state of his

2 residence, failed to make a full and truthful report as required, failed to obey the laws, and

failed to carry out the instructions of the probation officer. At the conclusion of the

hearing, the trial judge found that the defendant had left the state without permission, had

married the victim in violation of the probation officer’s instructions, had continued to have

contact with the victim after having been directed against such contact, and had failed to

comply with the TBI registry for one quarter.

There is little, if any, dispute concerning the evidence introduced at the

hearing. The defendant was convicted of incest and directed by the probation officer to

have no further contact with the victim. The defendant, relying upon the advice of his

attorney, went with the victim to the state of Mississippi and they were married.

Apparently, Mississippi law allowed the marriage of a brother to his adopted sister but the

same marriage is prohibited by the state of Tennessee. See T.C.A. § 36-3-101. The

proof also showed that the defendant’s attorney had talked with the probation officer

about the possibility of the defendant going to Mississippi to engage in marriage with the

victim. However, there was no indication that the probation officer consented or objected

to this plan. The proof further showed that the defendant had been directed to have no

contact with the victim and that this directive had been violated on a regular basis as the

defendant and the victim rode together to work each day. The defendant, at the time of

his reports, failed to reveal this relationship to the probation officer.

We find it unnecessary to address the defendant’s issue concerning the

constitutionality of the statute prohibiting marriages within a certain degree of relationship.

The defendant left the state of Tennessee without permission from his probation officer, 1

and he failed to truthfully report to his probation officer his continued association with the

1 We note that our law prohibits a probationer from leaving the jurisdiction of his probation officer without the expres s perm ission of th e trial judge. See T.C.A. § 40-35-303(h).

3 victim. The defendant’s subsequent marriage to the victim, even if valid in the state of

Mississippi, does not absolve the defendant of these violations of probation.

For the reasons stated above, we find that the trial judge did not abuse his

discretion in revoking the defendant’s probation. This finding makes it unnecessary to

answer the other issues raised in the defendant’s brief. We affirm the judgment of the

court below.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ DAVID H. WELLES, Judge

______________________________ JERRY L. SMITH, Judge