State v. John Mcbee, Jr.

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9811-CR-00413
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE October 5, 1999

AUGUST 1999 SESSION Cecil Crowson, Jr. Appellate Court Clerk

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9811-CR-00413 Appellee, ) ) Knox County v. ) ) Honorable Ray L. Jenkins, Judge JOHN W. McBEE, JR., alias, ) JOHN WARREN McBEE, alias, ) (Probation Revocation) JOHN WARREN McBEE, JR., alias, ) ) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General & Reporter

DAVID GALL TODD R. KELLEY Assistant Public Defender Assistant Attorney General 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37921 Nashville, TN 37243-0493

RANDALL E. NICHOLS District Attorney General

ZANE M. SCARLETT Assistant District Attorney General 400 Main Street P. O. Box 1468 Knoxville, TN 37901-1468

OPINION FILED: _________________________________

AFFIRMED

ALAN E. GLENN, JUDGE OPINION

The defendant, John W. McBee, Jr., entered guilty pleas to two counts of robbery

in January 1997, in the Knox County Criminal Court. In one case, the trial court sentenced

the defendant to six years, with nine months to be served in confinement followed by the

remainder of the sentence on probation. In the other case, the defendant received a four-

year suspended sentence and ten years of probation. These sentences were ordered to

be served consecutively. In February 1997, the defendant entered a guilty plea in the Knox

County Criminal Court to theft and received a one-year probationary sentence to be served

consecutively to the previous probationary sentences. These probationary sentences were

revoked in November 1998, following the issuance of a probation violation warrant, and the

defendant was ordered to serve these sentences. He filed an appeal as of right, claiming

that the trial court should not have revoked his probation. Based upon our review of the

record, and of applicable law, we affirm the action of the trial court.

A probation violation warrant issued for the defendant on November 20, 1997,

alleging that the defendant failed to report to his probation officer, the defendant failed to

pay supervision fees and court costs, and that his place of employment had gone out of

business. The warrant was later amended to include the allegation the defendant had

been convicted of three additional thefts. The defendant was arrested and a probation

revocation hearing was set for January 15, 1998. After the trial court released him on his

own recognizance, the defendant failed to appear for the revocation hearing. Eight months

later, the defendant was arrested and a revocation hearing was held on November 3, 1998.

The defendant did not dispute the above alleged violations, but asked the trial court to

consider an alternative to revocation.

The trial court revoked the defendant’s probation and ordered him to serve the

remainder of his sentence in confinement. The defendant timely appealed, listing one

issue: whether the trial court erred in revoking the defendant’s probation.

2 The standard of review upon an appeal of an order revoking probation is the abuse

of discretion standard. In State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App.

1997), this Court stated that “if the record presents substantial evidence to support

revocation, the trial court’s action will be approved.” Likewise, in State v. Harkins, 811

S.W.2d 79, 82 (Tenn. 1991), cited in Stubblefield, the court said that “[i]n order for a

reviewing court to be warranted in finding an abuse of discretion in a probation revocation

case, it must be established that the record contains no substantial evidence to support the

conclusion of the trial judge that a violation of the conditions of probation has occurred.”

Harkins, 811 S.W.2d at 82. If the trial judge finds by a preponderance of the evidence that

a probation violation has occurred, the court may revoke the defendant’s probation. Tenn.

Code Ann. § 40-35-311(e) (1997).

In the case sub judice, the defendant admitted that while on probation he was

convicted of additional criminal offenses, he failed to report to his probation officer, and he

failed to pay supervision and court costs. Further, he absconded and failed to appear for

his revocation of probation hearing which was not held until eight months later, following

his rearrest. Therefore, the trial court did not abuse its discretion by revoking the

defendant’s probation.

For the foregoing reasons, we affirm the decision of the trial court.

_____________________________________ ALAN E. GLENN, JUDGE

CONCUR:

____________________________________ JOSEPH M. TIPTON, JUDGE

____________________________________ JOHN EVERETT WILLIAMS, JUDGE