State v. James Dantes

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 15, 1997
• Docket: 02C01-9705-CC-00184
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED OCTOBER 1997 SESSION December 15, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) C.C.A. No. 02C01-9705-CC-00184 Appellee, ) ) Hardeman County V. ) ) Honorable Jon Kerry Blackwood, Judge ) JAMES DANTES, ) ) (Revocation of Community Corrections) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

Clifford K. McGown, Jr. John Knox Walkup Attorney at Law Attorney General & Reporter 113 North Court Square P.O. Box 26 Kenneth W. Rucker Waverly, TN 37185 Assistant Attorney General (On Appeal Only) Criminal Justice Division 425 5th Avenue North Gary F. Antrican Nashville, TN 37243-0493 District Public Defender Elizabeth T. Rice Jeannie Kaess District Attorney General Assistant District Public Defender 118 East Market Street Jerry Norwood P.O. Box 700 Assistant District Attorney General Somerville, TN 38068 302 Market Street (At Trial) Somerville, TN 38068

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION The appellant, James Dantes, pled guilty to two counts of violating the

Motor Vehicle Habitual Offenders Act. He received an effective sentence of six

years incarceration as a multiple offender. Before the appellant reported to jail,

he again violated the Motor Vehicle Habitual Offenders Act. He was sentenced

to one year and eight months incarceration, which was to be served

consecutively to his previous sentences. Therefore, he received a total effective

sentence of seven years and eight months.

Thereafter, the appellant signed a behavioral contract agreement and

entered into the community corrections program. However, the appellant

violated the conditions of this agreement. As a result of this violation, the trial

court revoked the appellant’s community corrections sentence and resentenced

him to an effective sentence of nine years. He appeals the revocation of his

community corrections sentence and the increase of his original sentence. Upon

review, we affirm.

The appellant contends that the revocation of his community corrections

sentence should be set aside because the trial court failed to specify the precise

condition or term of the agreement that was violated. For this Court to overturn a

community corrections revocation, we must find that the trial judge abused his or

her discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of

discretion is apparent when the record contains no substantial evidence to

support the conclusion that a violation of the community corrections sentence

has occurred. Id. In this case, however, we find that the record is replete with

evidence to support the revocation.

The appellant’s behavioral contract agreement required him to make

payments for costs or fines, complete 100 hours of community service, and

-2- abide by all rules and regulations of the program. The record reveals that the

appellant failed to make the required payments for court costs or fines.

Appellant repeatedly failed to attend his weekly scheduled meetings; and he was

observed by his case worker in an intoxicated state. The record contains

substantial evidence to support the trial court’s determination that the appellant

violated the conditions of his community corrections sentence. This issue is

without merit.

The appellant next contends that the trial court erred in increasing his

original sentence from seven years and eight months to an effective sentence of

nine years. The state argues that once a community corrections sentence has

been revoked, the trial court can conduct a sentencing hearing and sentence the

appellant to a sentence that exceeds the length of the initial sentence.

Tennessee Code Annotated § 40-36-106(e)(3) (Supp. 1996) grants a trial

judge the authority to resentence an appellant in excess of his or her original

sentence. When a trial court utilizes this procedure, a sentencing hearing should

be conducted. State v. Ervin, 939 S.W.2d 581 (Tenn. Crim. App. 1996).

The record reveals that the trial court considered the testimony at the

revocation hearing, the previous sentencing hearing, the presentence report, and

the entire record. The court found that new evidence of enhancement1 existed

and found no additional mitigation evidence. Therefore, finding that

the enhancement factors outweighed the only evidence of mitigation,2 the court

increased the appellant’s effective sentence by one year and four months.

1 The court found that the appellant had shown an unwillingness to comply with the conditions of a sentence involving release into the community. Tenn. Code Ann. § 40-35-114(8) (1990).

2 The trial court’s written order states that no mitigation evidence exists. However, the transcript reveals that the trial court considered the fact that the appellant’s conduct neither caused nor threatened se rious bodily injury.

-3- We find that the increase in the appellant’s sentence was warranted. The

appellant has failed to overcome the presumption of correctness. This issue is

Accordingly, we find no error of law mandating reversal. The judgment of

the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Judge

CONCUR:

__________________________ JOHN H. Peay, Judge

__________________________ DAVID G. HAYES, Judge

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