State v. Melvin Black

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 16, 1998
• Docket: 01C01-9710-CC-00501
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED AUGUST 1998 SESSION September 16, 1998

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9710-CC-00501 Appellee, ) ) Montgomery County v. ) ) Honorable John H. Gasaway, Judge MELVIN KEITH BLACK, ) ) (Probation Revocation) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

Collier W. Goodlett John Knox Walkup Assistant Public Defender Attorney General & Reporter 109 South Second Street 425 Fifth Avenue, North Clarksville, TN 37040 Nashville, TN 37243-0493

OF COUNSEL: Timothy F. Behan Assistant Attorney General Michael R. Jones 425 Fifth Avenue, North District Public Defender Nashville, TN 37243-0493 109 South Second Street Clarksville, TN 37040 John W. Carney, Jr. District Attorney General 204 Franklin Street, Suite 300 Clarksville, TN 37040-3420

William M. Cloud, Jr. Assistant District Attorney General 204 Franklin Street, Suite 300 Clarksville, TN 37040-3420

OPINION FILED: ______________________________

AFFIRMED PURSUANT TO RULE 20

L. T. LAFFERTY, SPECIAL JUDGE

OPINION The appellant, Melvin Keith Black, appeals as of right from the trial court’s

revocation of his probation sentence. The appellant contends the record is insufficient, as

a matter of law, to support a revocation of probation. Based on our review of the briefs and

the entire record in this cause, we conclude that this is an appropriate case for affirmance

under Rule 20, Tennessee Court of Criminal Appeals.

On April 13, 1995, the defendant entered two pleas of guilty to the offenses of

driving under the influence of an intoxicant before the Montgomery County Circuit Court.

The trial court imposed sentences of eleven months and twenty-nine days to be run

consecutively, and placed the defendant on probation for eleven months and twenty-nine

days with a condition of forty-five days to be served on weekends.

On February 10, 1997, a violation of probation warrant was sworn out alleging

several grounds including:

a new arrest by Ofcr. L. Pearson on 10/07/96 for driving on a revoked license and leaving the scene of a traffic accident; failure to report that arrest to his probation officer; a new arrest on 10/29/96 by Ofcr. P. Ashby for driving under the influence, implied consent and driving on a revoked license; being out at a late or unusual hour at the time of that arrest; failure to report that arrest to his probation officer; failure to complete a DUI school; failure to complete educational requirements; failure to report weekly as directed since 08/28/96; failure to make satisfactory progress in the MRT program (no steps attempted); failure to pay fines and court costs totalling $3,040.42 at the rate of $100.00 per month ($500.00 paid as of 12/26/96); failure to pay probation fees totalling $240.00 as of 12/26/96.

Following a hearing on the merits, the trial court revoked the defendant’s

probationary status.

The revocation of probation is committed to the sound discretion of the trial court.

State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If the trial court finds by

a preponderance of the evidence that a probation violation has occurred, it has the right

to revoke probation and cause the probationer to commence the execution of judgment as

originally entered. Tenn. Code Ann. §§ 40-35-310, -311(d). This Court will not find that a

2 trial court abused its discretion unless the record contains no substantial evidence to

support the trial court’s conclusion that the probation should be revoked. State v. Harkins,

811 S.W.2d 79, 82 (Tenn. Crim. App. 1981). The evidence at the revocation hearing need

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

the decision to revoke probation. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App.

1995).

The defendant did not submit a transcript of the revocation hearing to support his

allegation of insufficient evidence to revoke his periods of probation.

On May 19, 1997, the trial court entered an order revoking the defendant’s probation

and finding the defendant had a hearing on the facts alleged in the violation warrant. Also,

the order found the facts alleged in the violation warrant were proved by a preponderance

of the evidence. Accordingly, based upon a reading of the entire record, the briefs of the

parties, and the applicable law, this Court finds that the trial court’s judgment should be

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals.

________________________________________ L. T. LAFFERTY, SPECIAL JUDGE

CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE