State v. Tony Greene

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9702-CC-00043
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED NOVEMBER 1997 SESSION December 3, 1997

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) Appellee, ) No. 01C01-9702-CC-00043 ) ) Montgomery County v. ) ) Honorable John H. Gasaway, III, Judge ) TONY GREENE, ) (Probation Revocation) ) Appellant. )

For the Appellant: For the Appellee:

Michael R. Jones John Know Walkup District Public Defender Attorney General of Tennessee and and Russel Church Clinton J. Morgan Assistant Public Defender Assistant Attorney General of Tennessee 109 S. Second Street 450 James Robertson Parkway Clarksville, TN 37040 Nashville, TN 37243-0493 (ON APPEAL) John Wesley Carney, Jr. Reese N. Bagwell, Jr. District Attorney General 116 S. Second Street and Clarksville, TN 37040 Steve Garrett (AT TRIAL) Assistant District Attorney General 204 Franklin Street, Suite 200 Clarksville, TN 37040

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The defendant, Tony Greene, appeals as of right from a judgment of the

Montgomery County Circuit Court revoking his probation and requiring him to serve the

balance of his concurrent sentences. The defendant contends that the trial court erred

in ordering him to serve the full balance of his sentences because less restrictive

means could have been applied. We disagree.

In September 1990, the defendant was convicted, upon his guilty pleas, of

two charges of the sale of cocaine. He received concurrent eight-year sentences to be

served on probation. In October 1992, the defendant’s probation was revoked and he

was placed in the community corrections program. The record reflects that on the

same date he was sentenced for another cocaine sale offense to eight years in the

community corrections program. In July 1994, the defendant was charged in four more

cocaine-related cases, and pursuant to an agreement, he was convicted upon his plea

of guilty to one offense of sale of a Schedule II substance and he received a ten-year

sentence concurrent with his former sentences. At the same time, an order was

entered revoking his community corrections sentences and ordering that the sentences

be served in custody concurrently with the new ten-year sentence. In September 1995,

the defendant was placed on probation by the Department of Correction pursuant to its

boot camp program.

On March 26, 1996, a probation violation report, affidavit and warrant

were filed alleging probation violations with regard to the Department of Correction

probation order. The probation officer, Gary Hammer, testified that the grounds for

revocation were failure to report and curfew violations. He said that the defendant had

not reported since March 6, although he had advised the defendant numerous times of

the obligation to report. Mr. Hammer also testified that the defendant had an 8:00 p.m.

2 curfew but was not present at his home on sixteen occasions in January, February,

March and April when he had gone to the defendant’s home. Mr. Hammer stated that

the defendant said that he often stopped after work at his grandmother’s house to have

dinner.

The defendant testified that he could not report at 6:00 a.m. twice a week

as required by Mr. Hammer because he had no personal transportation. He said that

he told Mr. Hammer about his problem, but Mr. Hammer said that he still had to report.

Also, he was not able to be home by 8:00 p.m. because of work. However, he also

acknowledged that he had gone to his grandmother’s house. In rebuttal, Mr. Hammer

testified that he was aware of the defendant’s work schedule and never checked his

home until 8:15 p.m. or afterwards.

The trial court noted the defendant’s history in these cases. It found that

the defendant had violated the conditions of his probation relative to the reporting and

curfew requirements. It concluded that, given the defendant’s history, the violation

constituted willful disobedience to the conditions. It revoked the defendant’s probation.

The defendant contends that his substantial compliance with the

“important things,” such as not using or selling drugs and working, warrant a conclusion

that the violations did not rise to the level of justifying full revocation of probation.

It is within the trial court’s discretion to revoke the defendant’s probation if

it finds by a preponderance of the evidence that the defendant has violated a condition

of that probation. T.C.A. §§ 40-35-310 and -311(d); State v. Mitchell, 810 S.W.2d 733,

735 (Tenn. Crim. App. 1991). For an appellate court to find an abuse of discretion and

reverse a trial court’s revocation of probation, it must be demonstrated that the record

contains no substantial evidence to support the conclusion of the trial court that a

3 violation of the conditions of probation has occurred. See State v. Delp, 614 S.W.2d

395, 398 (Tenn. Crim. App. 1980).

In the present case, the defendant admitted that he did not comply with all

the conditions of his probation. The trial court attached significance to this because of

the defendant’s prior violations of earlier conditions for release in the community. Such

was justified under the evidence. We believe that the record reflects that the trial court

made a conscientious and intelligent judgment to revoke probation under the evidence.

See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The judgment of the trial court

is affirmed.

___________________________ Joseph M. Tipton, Judge

CONCUR:

_________________________ John H. Peay, Judge

_________________________ David H. Welles, Judge