State v. Rauhuff

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9610-CC-00382
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED AUGUST 1997 SESSION September 4, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, * C.C.A. # 03C01-9610-CC-00382

Appellee, * BLOUNT COUNTY

VS. * Hon. D. Kelly Thomas, Jr., Judge

STEVEN L. RAUHUFF, * (Probation Revocation)

Appellant. *

For Appellant: For Appellee:

Mack Garner Charles W. Burson District Public Defender Attorney General & Reporter 419 High Street Maryville, TN 37801 Peter M. Coughlan Assistant Attorney General 450 James Robertson Parkway Nashville, TN 37243-0493

Philip Morton Assistant District Attorney General 363 Court Street Maryville, TN 37804

OPINION FILED:__________________

AFFIRMED--RULE 20 ORDER

PER CURIAM OPINION

The defendant, Steve Rauhuff, appeals as of right the

judgment of the Blount County Circuit Court revoking his probation. Declared

a habitual motor vehicle offender, the defendant was convicted of violations

of the order in 1992 and 1993 and served a portion of both sentences in

custody. In 1994, the defendant was again convicted of violating the order

and sentenced to full probation1. He filed this appeal. While released on

probation in this case, the defendant was charged with a fourth violation of

the habitual motor vehicle offender order and with resisting arrest.

Thereafter, the trial court revoked probation.

When a probation revocation is challenged, the appellate courts

have a limited scope of review. If the trial judge finds by a preponderance of

the evidence "that the defendant has violated the conditions of his probation,"

probation may be revoked. Tenn. Code Ann. § 40-35-311(d). This decision

to revoke a suspended sentence rests in the sound discretion of the trial

court. The Sentencing Commission Comments to Section 40-35-310 provide

that "[u]pon revocation, the original sentence imposed can be placed into

effect." The determination by the trial court, if conscientiously made, is

entitled to an affirmance; the record must merely demonstrate that there is

substantial evidence to support its conclusions. State v. Delp, 614 S.W.2d

395, 398 (Tenn. Crim. App. 1980); see also State v. Williamson, 619 S.W.2d

145, 147 (Tenn. Crim. App. 1981). On appeal, the findings of the trial court

are entitled to the weight of a jury verdict, and the appellant has the burden to

demonstrate that the record contains no substantial evidence to support the

1 The record indicates that the defendant was given full probation because his sentence was consecutive to a second, unrelated sente nce served in custo dy.

2 finding of the trial court that a violation of the conditions of probation has

occurred. State v. Wall, 909 S.W.2d 8,9-10 (Tenn. Crim. App. 1994); State v.

Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Upon a violation of the terms of

probation, "the trial judge shall have the right by order duly entered upon the

minutes of [the] court, to revoke the probation and suspension of sentence

and cause the defendant to commence the execution of the judgment as

originally entered, or otherwise in accordance with § 40-35-310 ...." Tenn.

Code Ann. § 40-35-311(d).

In our view, the trial court did not abuse its discretion when it

revoked the appellant's probation and ordered his incarceration. The record

supports the trial court's findings that the defendant had not complied with the

terms of his probation by (1) failing to pay fees when employed; (2) failing to

pay court costs when employed; (3) failing to attend required AA meetings;

and (4) failing to perform his required community service. The trial court did

not consider the defendant's pending charges as a basis for the revocation.

Accordingly, the judgment of the trial court is affirmed pursuant

to Rule 20 of the Tennessee Court of Criminal Appeals.

PER CURIAM