State v. Melissa Roberts

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 16, 1999
• Docket: 01C01-9806-CR-00238
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED MARCH SESSION , 1999 April 16, 1999

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9806-CR-00238 ) Appellee, ) ) ) SUMNER COUN TY VS. ) ) HON. JANE W. WHEATCRAFT, MELISSA ROBERTS, ) JUDGE ) Appe llant. ) (Probation Revocation)

ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF SUMNER COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

DANA L. SCOTT JOHN KNOX WALKUP Assistant Public Defender Attorney General and Reporter 117 East Main Street Gallatin, TN 37066 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243

LAWRENCE RAY WHITLEY District Attorney General

WAYNE HYATT Assistant District Attorney General 113 East Main Street Gallatin, TN 37066

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE OPINION

The Defenda nt, Melissa Ro berts, appea ls as of right the trial cou rt’s

revocation of her probation. She was sentenced on November 24, 1997 to four

years at thirty percent for theft of property valued over $50 0 and th eft of prope rty

valued over $1000 . The court permitted her to serve her sentence on probation,

and the conditions of her probation included being employed, paying probation

costs, m aking res titution paym ents, and reporting to her pro bation offic er.

Defend ant’s probation officer, Taz Whitley, reported that Defendant had

violated her probation, and the trial court held a revocation hearing on May 15,

1998. After hearing testimo ny from W hitley and Defen dant, the trial court

revoked Defendant’s probation and ordered her sente nce to be se rved in

confinement. Defendant appeals the decision of the trial court, and we affirm.

Both the granting and denial of probation rest in the sound discretion of the

trial judge. State v. Mitch ell, 810 S.W.2d 733, 735 (Ten n. Crim. App . 1991).

Moreover, the trial judge has the d iscretiona ry authority to revoke probatio n if a

preponderance of the evidence establishes that a defendant violated the

conditions of proba tion. The trial judge m ust, how ever, add uce su fficient

evidence during the probation revocation hearing to perm it an intelligent decision.

Id. The determ ination mad e by the trial court, if made with conscientious

judgm ent, is given the weight of a jury verdict an d entitled to affirman ce. Stamps

v. State, 614 S.W .2d 71, 73 (T enn. Crim. A pp. 1980).

-2- When a probation revocation is challenged, this Court has a limited scope

of review. Before concluding that a trial judge erred by finding a probation

violation, we must establish that the record c ontains n o subs tantial evide nce to

support the conclusion of the trial judge. State v. Harkins, 811 S.W.2d 79, 82

(Tenn. 1991). If the violation is so supported by the record, the judgment of the

trial court revoking proba tion will not be disturbed o n appeal un less it appears

that the trial cou rt acted arb itrarily or otherw ise abus ed its discre tion. State v.

Williamson, 619 S.W .2d 145, 146 (Tenn. Crim . App. 1981 ).

In this case, we find that the reco rd does contain s ubstan tial evidenc e to

support the trial judge’s determination that Defendant violated the terms and

conditions of her probation. We further find no abuse of discretion in her decision

to revoke Defendant’s probation. Defendant testified she understood that the

conditions of her pro bation were to remain employed, pay probation fees and

court costs, pay restitution, and report to her probation officer. She admitted that

she was not employed; that she had not made any payments toward probation

fees, court costs, or restitution; and that she had failed to report to her probation

officer since December of 1997. Taz Whitley confirmed that the foregoing were

conditions of D efendant’s pro bation and tha t she had inde ed failed to com ply.

Desp ite Defendant’s testimony that she had not obtained employment

because of her child-care commitments , that she h ad not m ade pa ymen ts

because she had n o mone y, and th at she had not reported to her probation

officer because she was ill and afraid; th e trial jud ge rev oked Defe ndan t’s

probatio n, stating,

-3- [Defen dant] has done absolutely nothing. And at the time she was sentenced, it was made clear to her I expec ted her to have employm ent and m ake re stitution to the vic tims. T he m ost sim ple and elementary thing that any probationer can do is report. I can understand not havin g mon ey. I can understand some other problems, but I cannot understand why so meone would not rep ort in to a prob ation office r. Having listened to her, just by her demeanor, I have no reason to believe this defendant is going to ever take probation seriou sly or ever try and comply w ith the requ iremen ts of a community-based sentence, so I am going to revoke her probation and order that she do the time.

W e find that a proba tion violation is well supported by the record—most

notab ly by Defendant’s own testimony. Therefore, the trial cou rt’s decision to

revoke her probation may not be overturned absent an abuse of discretion . We

conc lude th at the re vocatio n in this instan ce wa s within the proper range of the

trial judge’s discretion, rather than an abuse of her discretion.

For the foregoing reasons, the judgment of the trial court revoking

Defendant’s probation is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ JOE G. RILEY, JUDGE

___________________________________ JOHN EVERETT WILLIAMS, JUDGE

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