Court Cases Court Cases
AL  AK  AZ  AR  CA  CO  CT  DE  FL  GA  HI  ID  IL  IN  IA  KS  KY  LA  ME  MD  MA  MI  MN  MS  MO  MT  NE  NV 
NH  NJ  NM  NY  NC  ND  OH  OK  OR  PA  RI  SC  SD  TN  TX  UT  VT  VA  WA  WV  WI  WY  EO  NR  PR  DC  US 
 
View Case Details
 
STATE OF TENNESSEE Appellee
vs.
MELVIN GRIFFIN Appellant.
 
Case:
NO. 01C01-9503-CC-00090
 
Location:
COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
 
Attorneys:
FOR THE APPELLANT: Virginia Lee Story Franklin Tennessee.
FOR THE APPELLEE: Charles W. Burson Counsel General and Reporter Nashville Tennessee. Jeff Burks Assistant District Counsel Franklin Tennessee. Cyril V. Fraser Criminal Justice Division Nashville Tennessee.
 
Court:
ROBERT E. CORLEW III SPECIAL Court CONCUR: GARY R. WADE Court DAVID H. WELLES Court
 
Author:
The Hon. Justice Robert E. Corlew III
 

From the decision of the Trial Court revoking his probation and ordering him to serve sixty (60) days in the Williamson County Jail before being released to regular probation the Appellant seeks review before this Court. The single issue presented upon appeal is whether Court erred in sentencing the Appellant to serve time in jail rather than allowing him to remain on probation placing him under an intensive probation.

The facts show that the Appellant was convicted of two counts of forgery in February 1994. He was sentenced to serve one (1) year on each count to the Department of Corrections the sentences running concurrently and the sentences being suspended upon the condition that the Appellant complied with the terms of his probation.

A number of violations were alleged by the State. First the evidence established that a rule of probation required the Appellant to seek permission from his probation Counselor before changing his residence or place of employment. Although the Appellant has remained steadily employed for General Motors at the Saturn plant in Maury County the evidence was undisputed that the Appellant moved his place of residence from Columbia to Spring Hill Tennessee without seeking permission of his probation Counselor and without so much as informing his probation Counselor of the change of residence until some four (4) weeks following his move. A further condition of probation required the Appellant to report regularly to his probation officer on a monthly basis. It is further undisputed that the Appellant failed to report to his Counselor in May and in June 1994.

The Appellant further acknowledged that he had used marijuana during the term of his probation. It was undisputed that a rule of probation required that the Appellant abide by the law and further that he refrain from using any illegal substances. The State alleged that the Appellant failed drug tests on March 16 and July 20 1994. It was the contention of the Appellant that he failed only one (1) drug test but he admitted not only his failure to pass the drug test but also his use of marijuana during the term of his probation.

The Appellant further was ordered to perform some two hundred (200) hours public service work as a condition of his probation. The evidence was undisputed that during some eleven (11) months after his probationary period began and to the date of the revocation the Appellant performed only an extremely small number of hours of public service completing only some twenty (20) hours or more of the two hundred (200) required hours. Further despite his steady employment and substantial income of approximately $ 48 000 during 1994 the Appellant acknowledged that he had paid only a portion of the costs associated with the cause.

A warrant for the arrest of the Appellant was issued on July 26 1994 alleging his violation of the rules of probation. After hearing the testimony of two probation officers and the Appellant the Trial Court determined that the Appellant should serve sixty (60) days in jail rather than being placed under some form of intensive probation as the Appellant requested. At the hearing it was the contention of the Appellant that he should not be required to serve a sentence or alternatively should be entitled to other consideration for the reason that he enjoys a very substantial income in a very responsible job and has the duty to support four (4) minor children. It further was the contention of the Appellant that his employment for General Motors would be terminated if he were required to serve the sixty (60) days ordered. The Appellant remains on bond pending the decision of this Court.

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 Court must find that the record contains no substantial evidence sufficient to support the conclusion of the Trial Court that the violation of the terms of probation has occurred. Id; State v. Delp 614 S.W.2d 395 398 (Tenn. Crim. App. 1980) perm. app. denied (1981). The Trial Court is required only to find that the violation of probation occurred by a preponderance of the evidence. Tennessee Code Annotated Sec. 40-35-311(d) (1990). The Trial Court may revoke probation and may impose any penalty less than or equal to that sentence originally imposed upon the probationer. Tennessee Code Annotated Sec. 40-35-310 (1990). In determining the sentence to be imposed upon revocation the Trial Court is entitled to exercise its sound discretion which will not be overturned except where it is shown that the Trial Court acted arbitrarily. State v. Williamson 619 S.W.2d 145 146 (Tenn. Crim. App. 1981) perm. app. denied.

On appeal the duty of Court is to examine the record to determine whether the Trial Court conscientiously and intelligently exercised its sound discretion or whether it acted in an arbitrary manner. Hooper v. State 201 Tenn. 156 297 S.W.2d 78 81 (Tenn. 1956); State v. Mitchell 810 S.W.2d 733 735 (Tenn. Crim. App. 1991).

In this cause the Trial Court found the Appellant to have committed an "offense to society for this particular person to have violated the rules of probation in the ways that he has although the Trial Court specifically found only that the Appellant has failed to accomplish his public service work. The Trial Court also observed that the rules of probation have to mean something." Although the Trial Court did not make specific findings concerning the other alleged violations of the rules of probation the record reveals to this Court that the Appellant acknowledged his failure to obtain permission to change his residence his failure to report to his probation officer and his failure of at least one drug test and his use of marijuana while on probation. He also acknowledged that he had not paid all of his court costs. The record further contains undisputed evidence that all of these actions were in violation of the rules of probation. Clearly the record supports the finding of the Trial Court that the Appellant has completed only a small portion of his public service work.

Court finds that the evidence supports the decision of the Trial Court finding that a violation of probation occurred. Considering the entire record in this cause Court must find that there was no abuse of discretion by the Trial Court in ordering the revocation of probation ordering the Appellant to jail. This cause is remanded to the Trial Court for enforcement of the sentence.

Having found the issue to be without merit the judgment is affirmed.

AFFIRMED.

ROBERT E. CORLEW III

SPECIAL Court

CONCUR:

GARY R. WADE Court

DAVID H. WELLES Court