State v. Johnny Lee Amos

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 18, 1997
• Docket: 01C01-9610-CC-00447
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED AUGUST 1997 SESSION September 18, 1997

Cecil W. Crowson Appellate Court Clerk STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9610-CC-00447 Appellee, ) ) MAURY COUNTY VS. ) ) HON. JAMES L. WEATHERFORD, ) JUDGE JOHNNY LEE AMOS, ) ) (Probation Revocation) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

SHARA A. FLACY JOHN KNOX WALKUP (of counsel on appeal) Attorney General & Reporter District Public Defender 209 W. Madison St. CLINTON J. MORGAN Pulaski, Tennessee 38478-1208 Assistant Attorney General 450 James Robertson Parkway JOHN R. WINGO Nashville, Tennessee 37243-0493 (at hearing & on appeal) Assistant Public Defender T. MICHAEL BOTTOMS 128 North Second Street District Attorney General P.O. Box 1208 Pulaski, Tennessee 38478-1208 LEE BAILEY Assistant District Attorney General 10 Public Square P.O. Box 1619 Columbia, Tennessee 38402-1619

OPINION FILED: _________________

AFFIRMED

JOE G. RILEY, JUDGE OPINION The appellant, Johnny Lee Amos,1 appeals the order of the Maury County

Circuit Court revoking his probation and requiring him to serve the balance of an

eight (8) year sentence in the Tennessee Department of Correction. The sole issue

presented for review is whether the trial court erred in revoking his probation and

ordering the remainder of his sentence to be served in custody. The judgment of the

trial court is AFFIRMED.

FACTS

On July 11, 1994, the appellant pled guilty to aggravated burglary and

attempted burglary. He received concurrent suspended sentences of four (4) years

and one (1) year, respectively. He was released on time served and placed on

supervised probation. In January 1995, a probation violation warrant was issued

based on 1) appellant’s refusal to report to his probation officer and to supply the

name of an employer; 2) failure to pay fees to the probation office; and 3) failure to

pay court fees. The warrant was subsequently amended when appellant was

arrested on a new burglary offense. An order was issued by the trial court in August

1995, which retired the warrant and allowed the appellant to remain on probation.

On August 14, 1995, the appellant was convicted of misdemeanor theft and

the sale of .5 grams of cocaine. He was sentenced to concurrent terms of eleven

(11) months, twenty-nine (29) days and eight (8) years, respectively. The sentences

were suspended after appellant served 80 days.

On March 4, 1996, the appellant pled guilty to new charges of misdemeanor

theft and evading arrest. He received concurrent sentences of eleven (11) months,

twenty-nine (29) days. The judgments indicate he was to continue in his current

probation status. Two weeks later the appellant tested positive for cocaine and

1 Appellant’s name is spelled both “Johnny” and “Johnnie” in various court documents.

2 marijuana. As a result, another probation violation warrant was issued. The

warrant was later amended to include new charges against the appellant for arson

and attempted aggravated arson.

During the revocation hearing, the appellant admitted to cocaine and

marijuana use in violation of his probation. The trial court revoked the appellant’s

probation and required the remainder of his eight (8) year sentence to be served in

custody.

CONCLUSION

Although he admits to violating his probation, the appellant argues the trial

court erred by ordering the balance of his sentence to be served in the Tennessee

Department of Correction.

A trial court may revoke probation and order the imposition of the original

sentence upon a finding by a preponderance of the evidence that the person has

violated a condition of probation. Tenn. Code Ann. § 40-35-310, 311. The decision

to revoke probation rests within the sound discretion of the trial court. State v.

Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Probation revocations are

subject to an abuse of discretion, rather than a de novo standard of review. State v.

Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown if the

record is devoid of substantial evidence to support the conclusion that a violation of

probation has occurred. Id. The evidence at the revocation hearing need only show

that the trial court exercised a conscientious and intelligent judgment in making its

decision. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

At the revocation hearing, the appellant freely admitted to using cocaine and

marijuana in violation of his probation. He explained that the violation was in

reaction to his girlfriend leaving him. In response to questions by defense counsel,

he stated that although it would be “nice” to go to a drug rehabilitation center, he did

not have a drug problem. The trial court revoked his probation.

3 The appellant was repeatedly given an opportunity to demonstrate he was

suitable for probation; yet, he continued to violate the imposed conditions. The trial

court did not abuse its discretion in revoking appellant’s probation and reinstating his

original sentence. This issue is without merit.

The judgment of the trial court is AFFIRMED.

____________________________ JOE G. RILEY, JUDGE

CONCUR:

______________________________ J. CURWOOD WITT, JUDGE

______________________________ JOE H. WALKER, III, SPECIAL JUDGE