             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE            FILED
                           NOVEMBER 1998 SESSION
                                                        February 10, 1999

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )   C.C.A. NO. 01C01-9711-CC-00504
             Appellee,              )
                                    )    MAURY COUNTY
VS.                                 )
                                    )    HON. JIM T. HAMILTON,
JEFFREY A. WARFIELD,                )    JUDGE
                                    )
             Appellant.             )    (Probation Revocation and Invalid
                                         Guilty Plea)



FOR THE APPELLANT:                      FOR THE APPELLEE:


JOHN E. HERBISON                        JOHN KNOX WALKUP
2016 Eighth Ave., South                 Attorney General & Reporter
Nashville, TN 37204
      (On Appeal)                       DARYL J. BRAND
                                        Asst. Attorney General
                                        Cordell Hull Bldg., 2nd Fl.
CLAUDIA JACK                            425 Fifth Ave., North
District Public Defender                Nashville, TN 37243-0493

WILLIAM C. BRIGHT                       MIKE BOTTOMS
Asst. Public Defender                   District Attorney General
809 South Main St., Suite 200
Columbia, TN 38401                      STELLA HARGROVE
       (At Hearing)                     Asst. District Attorney General
                                        P.O. Box 1619
                                        Columbia, TN 38401-1619




OPINION FILED:



AFFIRMED IN PART, REVERSED IN PART


JOHN H. PEAY,
Judge
                                      OPINION



             Over the course of 1994, 1995, and 1996, the defendant pled guilty to the

sale of cocaine (Case No. 8531), the possession of cocaine for resale (Case No. 8540),

the sale of cocaine (Case No. 8742), and the delivery of cocaine (Case No. 9204). In

Case Nos. 8531 and 8540, the defendant was sentenced to four years on each count to

be served consecutively on supervised probation. The defendant was also sentenced

to four years on probation in Case No. 8742 to run concurrently with his other sentences.

Lastly, the defendant was sentenced to sixty days to be served and four years on

probation in Case No. 9204, which also was to run concurrently with the sentences for

Case Nos. 8531 and 8540. On October 3, 1997, the defendant’s probation in all four

cases was revoked, and the defendant was ordered to serve the original eight-year

sentence in the Tennessee Department of Correction. The defendant now appeals and

presents the following issues for our review:

             (1) whether the trial court failed to consider less restrictive sentencing
             alternatives upon probation revocation;

             (2) whether the trial court was without jurisdiction in Case No. 9204
             because the charging instrument is a general sessions court warrant
             and the record includes no written waiver of the defendant’s right not
             to be put to answer any criminal charge except by indictment,
             presentment, or impeachment;

              (3) whether the charging instrument in Case No. 9204 avers no
              culpable mental state and therefore renders any judgment void.


              After a review of the record and applicable law, we affirm the trial court’s

reinstatement of the defendant’s original sentence upon revocation of probation.

However, the defendant’s conviction in Case No. 9204 is reversed and the warrant

dismissed.



              The defendant pled guilty on four separate occasions to four separate


                                            2
counts involving cocaine. The defendant was placed on probation regarding each of

these counts. The terms of his probation mandated that the defendant refrain from the

use of illegal narcotics and that he would be tested for such narcotics randomly. On

August 9, 1995, a probation violation report was filed alleging that the defendant was not

paying required fees and costs. On October 18, 1995, a probation violation report was

filed alleging that the defendant failed to obey the laws of the United States, failed to

report to his probation officer, failed to pay required fees, tested positive for and admitted

to the use of cocaine, and failed to obtain drug rehabilitation as ordered by the court. On

July 12, 1996, another probation violation report was filed because the defendant tested

positive for the use of cocaine. Although the defendant spent some time in jail and in

several rehabilitation programs, the defendant’s probation was reinstated on at least two

occasions. On March 3, 1997, a probation violation report was filed alleging that the

defendant failed to report to his probation officer, failed to submit to random drug

screens, and failed to pay required fees. On October 3, 1997, the defendant’s probation

was revoked and his original sentence of eight years was reinstated to be served in the

Tennessee Department of Correction.



              The factual basis upon which the trial court relied in revoking the

defendant’s probation is not disputed. However, the defendant contends that the trial

court failed to consider less restrictive sentencing alternatives. This Court has held that

an accused, already on probation, is not entitled to a second grant of probation or

another form of alternative sentencing. State v. James Moffit, No. 01C01-9010-CC-

00252, Williamson County (Tenn. Crim. App. filed April 4, 1991, at Nashville); State v.

Jimmie L. Allen, No. 02C01-9509-CR-00286, Shelby County (Tenn. Crim. App. filed April

28, 1997, at Jackson). It is also well established that the trial court has the authority to

revoke a defendant’s probation and to impose the original sentence on the defendant.



                                              3
T.C.A. § 40-35-310, -311 (1997). The Tennessee Supreme Court has held that

              a trial judge may revoke a sentence of probation or a suspended
              sentence upon a finding that the defendant has violated the cond-
              itions of his probation or suspended sentence by a preponderance
              of the evidence. T.C.A. § 40-35-311. The judgment of the trial court
              in this regard will not be disturbed on appeal unless it appears that
              there has been an abuse of discretion.

State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)(citing State v. Williamson, 619 S.W.2d

145, 146 (Tenn. Crim. App. 1981)). If the record contains substantial evidence to support

the trial court’s conclusion that a probation violation has occurred, no abuse of discretion

will be found. Harkins, 811 S.W.2d at 82.



              In the case at bar, the defendant concedes that he violated his probation

not once, but on several occasions. The defendant used illegal drugs, failed to pay court-

ordered fees, failed to meet with his probation officer, failed to submit to drug screens,

failed to obey the law, and failed to attend a rehabilitation program as ordered by the

court. In spite of these probation violations, the defendant was allowed to remain on

probation and given several chances to overcome his drug addiction. The defendant now

contends that the trial court did not consider alternative sentencing. However, the trial

court specifically pointed out that the defendant had been given four chances at probation

and had not been able to handle any of those chances. As such, it is clear the trial judge

considered alternative sentencing and the fact that it had not worked for the defendant

in the past. As there is substantial evidence in the record to support the trial court’s

conclusion that a probation violation had occurred, we find the trial court did not abuse

its discretion by reinstating the defendant’s original sentence to be served in the

Tennessee Department of Correction.



              The defendant next contends that the trial court was without jurisdiction in

Case No. 9204 because the charging instrument was a general sessions warrant and the


                                             4
record includes no written waiver of the defendant’s right not to be put to answer any

criminal charge except by indictment, presentment, or impeachment as required by Art.

I, § 14 of the Tennessee Constitution.1



                 It is well established that “[a] lawful accusation is an essential jurisdictional

element of a criminal trial, without which there can be no valid prosecution.” State v.

Morgan, 598 S.W.2d 796, 797 (Tenn. Crim. App. 1979) (citations omitted). There is also

an absolute right to a criminal accusation by a grand jury that applies to all crimes except

those involving a fine of fifty dollars ($50) or less. State v. Brackett, 869 S.W.2d 936,

938 (Tenn. Crim. App. 1993) (citations omitted). However, this right may be relinquished

by a valid waiver. Id. “Absent either grand jury action or the written waiver of that

guarantee, there can be no valid conviction.” Id.; see also Morgan, S.W.2d at 797. As

there was no grand jury indictment in Case No. 9204 and no written waiver, the trial court

was without jurisdiction to enter a judgment of conviction on the defendant’s guilty plea.2



                 Accordingly, we affirm the trial court’s probation revocation and

reinstatement of the defendant’s original sentence with regard to Case Nos. 8531, 8540,

and 8742. The judgment in Case No. 9204, however, is reversed and the warrant

dismissed.


                                                             ______________________________
                                                             JOHN H. PEAY, Judge




        1
         Not only is the record d evoid of a ny evidenc e of an ind ictmen t or a written w aiver, the S tate
concedes that they failed to obtain an indictment or a written waiver in Case No. 9204.

        2
          The defendant also contends that the charging instrument in Case No. 9204 avers no
culpable men tal state and any judgm ent pron ounce d thereo n is therefo re void. W e find no n eed to
address this issue as we have found the defendant’s conviction void on other grounds.

                                                       5
CONCUR:



______________________________
GARY R. WADE, Presiding Judge



______________________________
JERRY L. SMITH, Judge




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