FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE June 22, 1998 APRIL 1998 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9707-CC-00271 ) vs. ) Blount County ) REGINA ANN OWEN, ) Hon. D. Kelly Thomas, Jr., Judge ) Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER (on appeal) JOHN KNOX WALKUP District Public Defender Attorney General & Reporter
NATALEE S. HURLEY (at hearing) CLINTON J. MORGAN Assistant Dist. Public Defender Asst. Attorney General 419 High St. 425 Fifth Ave. North Maryville, TN 37804 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493
MICHAEL L. FLYNN District Attorney General
EDWARD BAILEY Asst. District Attorney General 363 Court St. Maryville, TN 37804
OPINION FILED:________________
AFFIRMED AS MODIFIED
CURWOOD WITT, JUDGE OPINION
The defendant, Regina Ann Owen,1 appeals from the revocation of her
probationary sentence. She was convicted upon her guilty plea of attempting to
obtain a controlled substance by fraud, a Class D felony. She was sentenced to
serve one year on probation and ordered to pay court costs and probation fees.
After the one year had expired and the defendant had not paid all of her costs, the
court signed an agreed order extending probation for an additional year. Thereafter,
the defendant's probation officer filed a violation report alleging the defendant had
violated her probation by being convicted of a misdemeanor, using illegal drugs,
being in arrears on probation fees, and not making payments on the court costs.
Following a hearing at which the defendant was represented by counsel, the court
revoked the defendant's probationary status and ordered her to serve a minimum
of 30 days in the county jail, after which time she could obtain her freedom by
payment in full of court costs and probation fees and would have fully satisfied her
sentence. The defendant appeals from this adverse order, claiming the trial court
abused its discretion in (1) revoking her probationary status and (2) requiring her to
pay the costs and fees in order to obtain release despite her indigent status. On
review, we affirm the revocation but modify its terms.
The standard of review upon appeal of an order revoking probation is
the abuse of discretion standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). In order for an abuse of discretion to occur, the reviewing court must find
that the record contains no substantial evidence sufficient to support the conclusion
of the trial judge that the violation of the terms of probation has occurred. Harkins,
811 S.W.2d at 82; State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
The trial court is required only to find that the violation of probation occurred by a
1 The defendant's name appears in the record as "Regina Ann Owen," "Regina Owen," and "Regina Owens." We use the defendant's name as it appears in the indictment. preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1997). Upon a
finding of a violation, the trial court is vested with the statutory authority to "revoke
probation and suspension of sentence and cause the defendant to commence the
execution of the judgment as originally entered." Tenn. Code Ann. § 40-35-311(d)
(1997). Furthermore, when probation is revoked, "the original judgment so rendered
by the trial judge shall be in full force and effect from the date of the revocation of
such suspension." Tenn. Code Ann. § 40-35-310 (1997). The trial judge retains the
discretionary authority to order the defendant to serve the original sentence. See
State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).
In this case, the defendant admitted violation of the terms of probation.
This alone is substantial evidence of record to support the trial court's revocation
order. See State v. Michael Emler, No. 01C01-9512-CC-00424, slip op. at 4 (Tenn.
Crim. App., Nashville, Nov. 27, 1996) (where the defendant admits violation of the
terms of probation, revocation by the trial court is neither arbitrary nor capricious);
see also State v. Mitzi Ann Boyd, No. 03C01-9508-CC-00246, slip op. at 3 (Tenn.
Crim. App., Knoxville, Nov. 1, 1996). There was evidence the defendant was
succeeding in drug rehabilitation after testing positive for illicit drugs on numerous
occasions several months earlier. Although she had violated the law during a
domestic disturbance, she believed her criminal activity resulted from the adverse
side effects of prescription medication. However, the fact remains that the
defendant was given a favorable form of alternative sentencing and repeatedly
failed to abide by the rules imposed upon her. We cannot say the trial court abused
its discretion in revoking probation for the defendant's prohibited illicit drug use and
criminal activity.
We find troubling, however, the aspect of the trial court's order which
finds violations for failure to pay costs and fines and imposes incarceration until
such monies are paid in full. The rule regarding revocation of probation for failure
3 to pay fines and costs is that a court may not revoke until determining the underlying
reasons payment has not been made. Massey v. State, 929 S.W.2d 399, 402
(Tenn. Crim. App. 1996) (citing Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064
(1983)). If the nonpayment is due to willful refusal to pay or failure to make
sufficient bona fide efforts to obtain the means to pay, the probation may be
revoked. Massey, 929 S.W.2d at 402 (citation omitted); State v. Dye, 715 S.W.2d
36, 40, (Tenn. 1986) (citation omitted). If, on the other hand, the nonpayment
stems from the probationer's inability to pay, it may not form the basis for
imprisonment. Massey, 929 S.W.2d at 402 (citations omitted).
In the case at bar, the court made no finding that the defendant's
failure to pay court costs and probation fees was due to willful refusal or failure to
make sufficient bona fide efforts to obtain the funds to pay. The evidence was that
she had paid $45 of the $372 owed for costs. The defendant's most recent
payment of $10 for court costs had been made in the month prior to the revocation
hearing. The amount owed for probation fees was not in evidence. The probation
officer testified some of the fees "have been reduced," although he did not specify
whether this reduction resulted from the defendant's payments or administrative
cancellation of amounts owed. The defendant testified she is employed in child
care, earning $140 to $150, "maybe a little bit more" per week. She lives alone, and
her rent and utilities are $125 per week. She receives assistance from her aunt in
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FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE June 22, 1998 APRIL 1998 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9707-CC-00271 ) vs. ) Blount County ) REGINA ANN OWEN, ) Hon. D. Kelly Thomas, Jr., Judge ) Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
MACK GARNER (on appeal) JOHN KNOX WALKUP District Public Defender Attorney General & Reporter
NATALEE S. HURLEY (at hearing) CLINTON J. MORGAN Assistant Dist. Public Defender Asst. Attorney General 419 High St. 425 Fifth Ave. North Maryville, TN 37804 2d Floor, Cordell Hull Bldg. Nashville, TN 37243-0493
MICHAEL L. FLYNN District Attorney General
EDWARD BAILEY Asst. District Attorney General 363 Court St. Maryville, TN 37804
OPINION FILED:________________
AFFIRMED AS MODIFIED
CURWOOD WITT, JUDGE OPINION
The defendant, Regina Ann Owen,1 appeals from the revocation of her
probationary sentence. She was convicted upon her guilty plea of attempting to
obtain a controlled substance by fraud, a Class D felony. She was sentenced to
serve one year on probation and ordered to pay court costs and probation fees.
After the one year had expired and the defendant had not paid all of her costs, the
court signed an agreed order extending probation for an additional year. Thereafter,
the defendant's probation officer filed a violation report alleging the defendant had
violated her probation by being convicted of a misdemeanor, using illegal drugs,
being in arrears on probation fees, and not making payments on the court costs.
Following a hearing at which the defendant was represented by counsel, the court
revoked the defendant's probationary status and ordered her to serve a minimum
of 30 days in the county jail, after which time she could obtain her freedom by
payment in full of court costs and probation fees and would have fully satisfied her
sentence. The defendant appeals from this adverse order, claiming the trial court
abused its discretion in (1) revoking her probationary status and (2) requiring her to
pay the costs and fees in order to obtain release despite her indigent status. On
review, we affirm the revocation but modify its terms.
The standard of review upon appeal of an order revoking probation is
the abuse of discretion standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). In order for an abuse of discretion to occur, the reviewing court must find
that the record contains no substantial evidence sufficient to support the conclusion
of the trial judge that the violation of the terms of probation has occurred. Harkins,
811 S.W.2d at 82; State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
The trial court is required only to find that the violation of probation occurred by a
1 The defendant's name appears in the record as "Regina Ann Owen," "Regina Owen," and "Regina Owens." We use the defendant's name as it appears in the indictment. preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1997). Upon a
finding of a violation, the trial court is vested with the statutory authority to "revoke
probation and suspension of sentence and cause the defendant to commence the
execution of the judgment as originally entered." Tenn. Code Ann. § 40-35-311(d)
(1997). Furthermore, when probation is revoked, "the original judgment so rendered
by the trial judge shall be in full force and effect from the date of the revocation of
such suspension." Tenn. Code Ann. § 40-35-310 (1997). The trial judge retains the
discretionary authority to order the defendant to serve the original sentence. See
State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).
In this case, the defendant admitted violation of the terms of probation.
This alone is substantial evidence of record to support the trial court's revocation
order. See State v. Michael Emler, No. 01C01-9512-CC-00424, slip op. at 4 (Tenn.
Crim. App., Nashville, Nov. 27, 1996) (where the defendant admits violation of the
terms of probation, revocation by the trial court is neither arbitrary nor capricious);
see also State v. Mitzi Ann Boyd, No. 03C01-9508-CC-00246, slip op. at 3 (Tenn.
Crim. App., Knoxville, Nov. 1, 1996). There was evidence the defendant was
succeeding in drug rehabilitation after testing positive for illicit drugs on numerous
occasions several months earlier. Although she had violated the law during a
domestic disturbance, she believed her criminal activity resulted from the adverse
side effects of prescription medication. However, the fact remains that the
defendant was given a favorable form of alternative sentencing and repeatedly
failed to abide by the rules imposed upon her. We cannot say the trial court abused
its discretion in revoking probation for the defendant's prohibited illicit drug use and
criminal activity.
We find troubling, however, the aspect of the trial court's order which
finds violations for failure to pay costs and fines and imposes incarceration until
such monies are paid in full. The rule regarding revocation of probation for failure
3 to pay fines and costs is that a court may not revoke until determining the underlying
reasons payment has not been made. Massey v. State, 929 S.W.2d 399, 402
(Tenn. Crim. App. 1996) (citing Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064
(1983)). If the nonpayment is due to willful refusal to pay or failure to make
sufficient bona fide efforts to obtain the means to pay, the probation may be
revoked. Massey, 929 S.W.2d at 402 (citation omitted); State v. Dye, 715 S.W.2d
36, 40, (Tenn. 1986) (citation omitted). If, on the other hand, the nonpayment
stems from the probationer's inability to pay, it may not form the basis for
imprisonment. Massey, 929 S.W.2d at 402 (citations omitted).
In the case at bar, the court made no finding that the defendant's
failure to pay court costs and probation fees was due to willful refusal or failure to
make sufficient bona fide efforts to obtain the funds to pay. The evidence was that
she had paid $45 of the $372 owed for costs. The defendant's most recent
payment of $10 for court costs had been made in the month prior to the revocation
hearing. The amount owed for probation fees was not in evidence. The probation
officer testified some of the fees "have been reduced," although he did not specify
whether this reduction resulted from the defendant's payments or administrative
cancellation of amounts owed. The defendant testified she is employed in child
care, earning $140 to $150, "maybe a little bit more" per week. She lives alone, and
her rent and utilities are $125 per week. She receives assistance from her aunt in
paying the $66 per week for her drug rehabilitation program. The defendant
previously received Social Security Disability (SSDI) and Supplemental Security
Income (SSI) payments; however, those benefits had been terminated. According
to the probation officer, the defendant is going through an appeals process in hopes
of obtaining resumption of those benefits. The record does not reflect whether the
$300 to $448 per month that the defendant previously received in SSDI and SSI
benefits was in addition to or in the place of her current income from child care. The
4 state adduced no evidence regarding the defendant's physical condition, mental
capabilities, education, transportation, and work experience -- factors which might
be illustrative of whether she was able to obtain more lucrative employment. Thus,
a finding of willful refusal or failure to make sufficient bona fide efforts to obtain the
means to reduce indebtedness for fees and costs would not be supported on this
record. The trial court erred in revoking the defendant's probation on the basis of
failure to pay the fees and costs without such a finding, although the revocation is
otherwise supported by the additional violations.
Further, we find that the trial court should not have required the
defendant to "buy her way out of jail" absent a finding she had the means to satisfy
the indebtedness and willfully had not done so. We are therefore compelled to
modify the court's judgment to reflect that the defendant is to serve 30 days in jail
for her violations of probation.2 After that time, she is to be returned to probationary
status until the terms of her sentence are satisfied as they presently stand or are
modified by the court below.
_______________________________ CURWOOD WITT, JUDGE
CONCUR:
2 In cases where an indigent defendant is sentenced to probation conditioned upon payment of fines, costs and/or fees, the trial court and/or the supervisory authority may find it productive to inquire and determine an appropriate payment schedule. Determination of a payment schedule makes it clear to the probationer what is expected of him or her and allows for an orderly reduction of the indebtedness. If the probationer willfully fails to abide by the terms, he or she is subject to revocation of probation, and the court's inquiry is simplified by the fact that it or the probation department, in conjunction with the probationer, previously determined that the probationer is able to make the payments specified in the schedule.
5 _____________________________ PAUL G. SUMMERS, JUDGE
_____________________________ JERRY L. SMITH, JUDGE