State v. Haynes

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY 1997 SESSION March 23, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9602-CC-00075 ) ) Sullivan County v. ) ) Honorable R. Jerry Beck, Judge ) DAVID GLEN HAYNES, ) (Sentencing) ) Appellant. )

For the Appellant: For the Appellee:

Stephen M. Wallace Charles W. Burson District Public Defender Attorney General of Tennessee and and Gale K. Flanary Janis L. Turner Assistant District Public Defender Counsel for the State P.O. Box 839 450 James Robertson Parkway Blountville, TN 37617 Nashville, TN 37243-0493

H. Greeley Wells, Jr. District Attorney General and Phyllis H. Miller Assistant District Attorney General P.O. Box 526 Blountville, TN 37617

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The defendant, David Glen Haynes, appeals as of right from an order of

the Sullivan County Criminal Court reversing its earlier grant of intensive probation. On

July 13, 1995, the defendant was convicted of aggravated burglary and aggravated

assault, Class C felonies, in the Sullivan County Criminal Court upon his entry of guilty

pleas.1 The defendant was sentenced as a Range I, standard offender to concurrent

sentences of five years. The trial court ordered that the defendant serve his sentences

consecutively to the sentences imposed in an unrelated case.2 The trial court initially

granted intensive probation, but it reconsidered and reversed its decision after granting

the state’s petition for a rehearing based upon the defendant’s commission of an

assault upon his girlfriend that was not revealed at the sentencing hearing. 3 The

defendant contends that the trial court erroneously granted the state’s petition to rehear

and erroneously denied probation. We affirm the judgment of the trial court.

Initially, we note that the briefs submitted by both parties in this case are

lacking relative to the central issue in this appeal. See T.R.A.P. 27(a)(7), (b) and (h);

Tenn. Ct. Crim. App. R. 10. The defendant’s brief raises the issue whether the trial

court erred by granting the state’s petition to rehear and by denying probation. In the

argument portion of his brief, the defendant essentially summarizes the facts and then

states that “the court erred in reconsidering the matter, had correctly granted intensive

probation earlier, and erred in reversing its decision . . . .” The only authority cited by

the defendant relates to the appropriateness of denying alternative sentencing. The

defendant cites no authority in support of his argument that the trial court erred by

1 The trans cript o f the g uilty plea hear ing is n ot co ntain ed in th e rec ord o n app eal.

2 On July 13, 1995, the defendant also entered guilty pleas to the charges of rape, a Class B felony, and incest, a Class C felony, involving the defendant’s daughter. The defendant received concurrent, Range I sentences of eight years and three years, respectively. Upon recommendation by the state, the trial c ourt gran ted intens ive proba tion.

3 App aren tly, no o ne at the s ente ncin g hea ring b ut the defe nda nt wa s aw are o f the a ssa ult charge.

2 granting the state’s petition to rehear and reconsidering its decision to grant intensive

probation. Nor does the state respond to the issue about whether the trial court could

grant the petition to rehear and modify the manner of service of the sentence imposed

to a harsher manner. Rather, the state viewed the issue as one relating only to whether

the trial court appropriately denied alternative sentencing. Although it does note that

this court has affirmed a probation revocation for the commission of an offense

committed after the entry of judgment, but before the probationary term begins, see

State v. Stone, 880 S.W.2d 746, 748 (Tenn. Crim. App. 1994), it does not explain how

the Stone circumstances relate to the present case.

We hold that the defendant has waived any claims regarding the

procedural correctness of the trial court’s actions. The argument portion of an

appealing party’s brief must set forth the contentions with respect to the issues

presented on appeal with citations to the authorities. T.R.A.P. 27(a)(7) and (h).

Pursuant to Rule 10(b), Tenn. Ct. Crim. App. R., issues that are not supported by

argument or citation to authorities will be treated as waived by this court. Given the

shortcomings of the defendant in preparing his brief, the issues presented by the

defendant must be treated as waived.

In any event, we note that the trial court afforded the defendant the

procedural protections provided under T.C.A. § 40-35-311 for probation revocations.

Moreover, evidence presented at the hearing on the state’s petition to rehear

established by a preponderance of the evidence that the defendant violated the law,

conduct unknown to the trial court at the sentencing. Under similar circumstances, this

court has approved a probation revocation even though the offense was committed

before the original sentencing. See State v. Stubblefield, 953 S.W.2d 223, 223-25

(Tenn. Crim. App. 1997).

3 Therefore, we see nothing in the record that would warrant us concluding

that the order of confinement was illegal or unauthorized. In consideration of the

foregoing and the record as a whole, the judgment of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

Gary R. Wade, Judge

William M. Barker, Judge