IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED AUGUST 1999 SESSION September 30, 1999
Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9812-CC-00494 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. TIMOTHY L. EASTER, STROHN JOHNSON, ) JUDGE ) Appellant. ) (Sentencing - Revocation of Judicial ) Diversion)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK C. SCRUGGS PAUL G. SUMMERS P. O. Box 158932 Attorney General and Reporter Nashville, TN 37215-8932 MARK E. DAVIDSON Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
RONALD L. DAVIS District Attorney General
LEE E. DRYER Assistant District Attorney General Williamson Co. Courthouse Ste. G-6 P. O. Box 937 Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED; REMANDED FOR ENTRY OF JUDGMENT
JOE G. RILEY, JUDGE OPINION
Defendant, Strohn Johnson, appeals the revocation of his judicial diversion
for simple possession of marijuana and imposition of the sentence requiring him to
serve 100 days in split confinement followed by probation. The sole issue on
appeal is whether the trial court erred in requiring the defendant to serve 100 days
in confinement. We AFFIRM the judgment of the trial court relating to the sentence
but REMAND for entry of a formal judgment of conviction.
FACTUAL BACKGROUND
Indicted for the offense of simple possession of marijuana, the defendant
entered a plea of guilty on March 2, 1998. The trial court placed the defendant on
judicial diversion pursuant to Tenn. Code Ann. § 40-35-313(a)(1)(A). The defendant
was placed on probation for a period of 11 months and 29 days.1
On August 5, 1998, the defendant tested positive for marijuana, cocaine and
benzodiazapam, a form of valium. These results were confirmed by the Redwood
Toxicology laboratory. Defendant was cited into court on a probation violation.
At the revocation hearing, the defendant conceded that he was a frequent
user of marijuana while he was on probation. He denied knowingly using cocaine
and stated if he ingested cocaine, a marijuana “blunt” must have been laced with
cocaine by someone else. His explanation for the benzodiazapam was a pill given
1 Defendant was also ordered to serve 48 hours in the county jail. This Court has previously noted that imposing a jail term as a condition of probation is incompatible with the provisions of the judicial diversion statute. See State v. James C. Wolford, C.C.A. No. 03C01- 9708-CR-00319, Hamilton County (Tenn. Crim. App. filed February 18, 1999, at Knoxville); State v. Paul David Cable, C.C.A. No. 03C01-9409-CR-00349, Carter County (Tenn. Crim. App. filed June 1, 1995, at Knoxville). Since the 48 hours has been served, the issue is moot. However, we direct that on remand the defendant be credited with 48 hours toward the 100 days of confinement.
2 him by his mother for back pain. He further acknowledged he had not taken the
necessary steps to receive drug treatment.
The trial court found the defendant had violated his probation, revoked
judicial diversion/probation, and sentenced the defendant to serve 11 months and
29 days at 75% in the county jail, suspended after 100 days in confinement. The
balance of the sentence was to be served on supervised probation. From this
sentence, the defendant appeals.
JUDICIAL DIVERSION
Tenn. Code Ann. § 40-35-313(a)(1)(A) provides that if a person is found
guilty or pleads guilty to certain offenses, the trial court may, without the entry of a
judgment of guilt and with consent of such person, defer further proceedings. The
defendant is placed on probation with reasonable conditions for not less than the
period of the maximum sentence for the misdemeanor offense with which the
defendant is charged, or not more than the maximum sentence for the felony
offense with which the defendant is charged. Id. Upon violation of probation, the
court may then enter an adjudication of guilt and proceed to sentencing. Tenn.
Code Ann. § 40-35-313(a)(2).
STANDARD OF REVIEW
Revocation of probation is subject to an abuse of discretion standard of
review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). Discretion is abused only if the record contains no substantial evidence to
support the conclusion of the trial court that a violation of probation has occurred.
Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). We adopt
3 these same standards in determining whether the trial court erred in finding a
probation violation and entering an adjudication of guilt under the judicial diversion
statute.
At the revocation hearing the defendant conceded that he had been a
frequent user of marijuana while on probation. Thus, the record contains
substantial evidence to support the conclusion of the trial court that a violation of
probation occurred. There was no abuse of discretion by the trial court in finding the
violation of probation and entering the adjudication of guilt.
SENTENCING
Upon finding the probation violation, the trial court properly proceeded to
sentence the defendant for the original offense. In sentencing the defendant for the
misdemeanor offense of simple possession of marijuana, the trial court noted the
evidence at the revocation hearing and defendant’s failure to cease the use of
illegal drugs. The court further noted the defendant’s failure to seek treatment and
his failure to take advantage of the opportunity granted him under judicial diversion.
Thus, the trial court concluded that measures less restrictive than confinement had
been unsuccessful. See Tenn. Code Ann. § 40-35-103(1)(C). The trial court did
not err by considering defendant’s conduct while on judicial diversion/probation in
sentencing the defendant.
Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-
302, which provides in part that the trial court shall impose a specific sentence
consistent with the purposes and principles of the 1989 Criminal Sentencing Reform
Act. See State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor
offender must be sentenced to an authorized determinate sentence with a
percentage of that sentence designated for eligibility for rehabilitative programs.
Tenn. Code Ann. § 40-35-302(d).
4 The trial court retains the authority to place the defendant on probation either
immediately or after a time of periodic or continuous confinement. Tenn. Code Ann.
§ 40-35-302(e). We further note that the trial court has more flexibility in
misdemeanor sentencing than in felony sentencing. State v. Troutman, 979 S.W.2d
271, 273 (Tenn. 1998). One convicted of a misdemeanor, unlike one convicted of
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED AUGUST 1999 SESSION September 30, 1999
Cecil Crowson, Jr. Appellate Court Clerk STATE OF TENNESSEE, ) ) NO. 01C01-9812-CC-00494 Appellee, ) ) WILLIAMSON COUNTY VS. ) ) HON. TIMOTHY L. EASTER, STROHN JOHNSON, ) JUDGE ) Appellant. ) (Sentencing - Revocation of Judicial ) Diversion)
FOR THE APPELLANT: FOR THE APPELLEE:
MARK C. SCRUGGS PAUL G. SUMMERS P. O. Box 158932 Attorney General and Reporter Nashville, TN 37215-8932 MARK E. DAVIDSON Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493
RONALD L. DAVIS District Attorney General
LEE E. DRYER Assistant District Attorney General Williamson Co. Courthouse Ste. G-6 P. O. Box 937 Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED; REMANDED FOR ENTRY OF JUDGMENT
JOE G. RILEY, JUDGE OPINION
Defendant, Strohn Johnson, appeals the revocation of his judicial diversion
for simple possession of marijuana and imposition of the sentence requiring him to
serve 100 days in split confinement followed by probation. The sole issue on
appeal is whether the trial court erred in requiring the defendant to serve 100 days
in confinement. We AFFIRM the judgment of the trial court relating to the sentence
but REMAND for entry of a formal judgment of conviction.
FACTUAL BACKGROUND
Indicted for the offense of simple possession of marijuana, the defendant
entered a plea of guilty on March 2, 1998. The trial court placed the defendant on
judicial diversion pursuant to Tenn. Code Ann. § 40-35-313(a)(1)(A). The defendant
was placed on probation for a period of 11 months and 29 days.1
On August 5, 1998, the defendant tested positive for marijuana, cocaine and
benzodiazapam, a form of valium. These results were confirmed by the Redwood
Toxicology laboratory. Defendant was cited into court on a probation violation.
At the revocation hearing, the defendant conceded that he was a frequent
user of marijuana while he was on probation. He denied knowingly using cocaine
and stated if he ingested cocaine, a marijuana “blunt” must have been laced with
cocaine by someone else. His explanation for the benzodiazapam was a pill given
1 Defendant was also ordered to serve 48 hours in the county jail. This Court has previously noted that imposing a jail term as a condition of probation is incompatible with the provisions of the judicial diversion statute. See State v. James C. Wolford, C.C.A. No. 03C01- 9708-CR-00319, Hamilton County (Tenn. Crim. App. filed February 18, 1999, at Knoxville); State v. Paul David Cable, C.C.A. No. 03C01-9409-CR-00349, Carter County (Tenn. Crim. App. filed June 1, 1995, at Knoxville). Since the 48 hours has been served, the issue is moot. However, we direct that on remand the defendant be credited with 48 hours toward the 100 days of confinement.
2 him by his mother for back pain. He further acknowledged he had not taken the
necessary steps to receive drug treatment.
The trial court found the defendant had violated his probation, revoked
judicial diversion/probation, and sentenced the defendant to serve 11 months and
29 days at 75% in the county jail, suspended after 100 days in confinement. The
balance of the sentence was to be served on supervised probation. From this
sentence, the defendant appeals.
JUDICIAL DIVERSION
Tenn. Code Ann. § 40-35-313(a)(1)(A) provides that if a person is found
guilty or pleads guilty to certain offenses, the trial court may, without the entry of a
judgment of guilt and with consent of such person, defer further proceedings. The
defendant is placed on probation with reasonable conditions for not less than the
period of the maximum sentence for the misdemeanor offense with which the
defendant is charged, or not more than the maximum sentence for the felony
offense with which the defendant is charged. Id. Upon violation of probation, the
court may then enter an adjudication of guilt and proceed to sentencing. Tenn.
Code Ann. § 40-35-313(a)(2).
STANDARD OF REVIEW
Revocation of probation is subject to an abuse of discretion standard of
review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). Discretion is abused only if the record contains no substantial evidence to
support the conclusion of the trial court that a violation of probation has occurred.
Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). We adopt
3 these same standards in determining whether the trial court erred in finding a
probation violation and entering an adjudication of guilt under the judicial diversion
statute.
At the revocation hearing the defendant conceded that he had been a
frequent user of marijuana while on probation. Thus, the record contains
substantial evidence to support the conclusion of the trial court that a violation of
probation occurred. There was no abuse of discretion by the trial court in finding the
violation of probation and entering the adjudication of guilt.
SENTENCING
Upon finding the probation violation, the trial court properly proceeded to
sentence the defendant for the original offense. In sentencing the defendant for the
misdemeanor offense of simple possession of marijuana, the trial court noted the
evidence at the revocation hearing and defendant’s failure to cease the use of
illegal drugs. The court further noted the defendant’s failure to seek treatment and
his failure to take advantage of the opportunity granted him under judicial diversion.
Thus, the trial court concluded that measures less restrictive than confinement had
been unsuccessful. See Tenn. Code Ann. § 40-35-103(1)(C). The trial court did
not err by considering defendant’s conduct while on judicial diversion/probation in
sentencing the defendant.
Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-
302, which provides in part that the trial court shall impose a specific sentence
consistent with the purposes and principles of the 1989 Criminal Sentencing Reform
Act. See State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor
offender must be sentenced to an authorized determinate sentence with a
percentage of that sentence designated for eligibility for rehabilitative programs.
Tenn. Code Ann. § 40-35-302(d).
4 The trial court retains the authority to place the defendant on probation either
immediately or after a time of periodic or continuous confinement. Tenn. Code Ann.
§ 40-35-302(e). We further note that the trial court has more flexibility in
misdemeanor sentencing than in felony sentencing. State v. Troutman, 979 S.W.2d
271, 273 (Tenn. 1998). One convicted of a misdemeanor, unlike one convicted of
a felony, is not entitled to a presumption of a minimum sentence. State v. Baker,
966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829,
832 (Tenn. Crim. App. 1994).
Given the flexibility traditionally granted to the trial court in misdemeanor
sentencing, we find no error in requiring the defendant to serve 100 days of his
sentence of 11 months and 29 days. Probation served in conjunction with judicial
diversion proved unsuccessful in deterring defendant’s illicit drug usage. Defendant
had repeatedly violated the terms of his probation by frequently using marijuana.
PROCEDURES FOR REVOCATION OF JUDICIAL DIVERSION
Although not raised as an issue, we take this opportunity to clarify the
procedure to be utilized in cases involving the revocation of judicial diversion. There
does not appear to be a consistent pattern across the state relating to this
procedure. W e suggest the following:
1. Upon placing a defendant on judicial diversion, the trial court shall enter
an order reflecting the grant of judicial diversion, the length and conditions of
probation, and that further proceedings are deferred. See Tenn. Code Ann. § 40-
35-313(a)(1)(A). This shall be by order and not by the entry of the customary
judgment of conviction form. A standard probation order may also be entered. Jail
time may not be imposed as a condition of probation under the judicial diversion
5 2. If there is an alleged violation of probation, the matter shall proceed under
the ordinary procedure for revocation of probation. See Tenn. Code Ann. § 40-35-
311(a).
3. If the trial court determines by a preponderance of the evidence that the
defendant has violated probation, the trial court may find a violation of probation.
See Tenn. Code Ann. § 40-35-311(e).
4. Upon finding a violation of probation, the trial court shall proceed to
sentence the defendant for the original offense. See Tenn. Code Ann. § 40-35-
313(a)(2). Sentencing shall proceed pursuant to the standard provisions of the
Sentencing Act. See Tenn. Code Ann. § 40-35-101 et seq.
5. The trial court shall then enter a standard judgment of conviction form
reflecting the sentence. Either under the special conditions portion of the judgment
form or by separate order, there should also be a notation that the judgment is
being entered pursuant to the judicial diversion statute based upon a violation of
probation.
REMAND FOR ENTRY OF PROPER JUDGMENT OF CONVICTION
In the instant case, the trial court entered an order reflecting the probation
violation and sentence imposed. For purposes of clarity and consistency, we
remand this matter to the trial court for entry of a standard judgment of conviction
form reflecting the sentence. It shall also contain a notation that the judgment is
entered pursuant to the judicial diversion statute based upon defendant’s violation
of probation. Credit shall be given for the 48 hours previously served by defendant.
6 CONCLUSION
Based upon the record before this Court, we AFFIRM the judgment of the
trial court relating to the sentence but REMAND for entry of a proper judgment of
conviction consistent with this Opinion.
____________________________ JOE G. RILEY, JUDGE
CONCUR:
____________________________ THOMAS T. WOODALL, JUDGE
____________________________ L. T. LAFFERTY, SENIOR JUDGE