          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                           JANUARY 2000 SESSION
                                                      FILED
                                                       February 10, 2000

STATE OF TENNESSEE,                    )            Cecil Crowson, Jr.
                                       )           Appellate Court Clerk
                                            NO. W1999-01256-CCA-R3-CD
      Appellee,                        )
                                       )    MADISON COUNTY
VS.                                    )
                                       )    HON. ROY B. MORGAN, JR.,
JANIE COUSETT,                         )    JUDGE
                                       )
      Appellant.                       )    (Community Corrections
                                       )     Revocation)



FOR THE APPELLANT:                          FOR THE APPELLEE:

GEORGE MORTON GOOGE                         PAUL G. SUMMERS
District Public Defender                    Attorney General and Reporter

STEPHEN P. SPRACHER                         R. STEPHEN JOBE
Assistant District Public Defender          Assistant Attorney General
227 West Baltimore Street                   Cordell Hull Building, 2nd Floor
Jackson, TN 38301-6137                      425 Fifth Avenue North
(At Trial and On Appeal)                    Nashville, TN 37243-0493

C. MICHAEL ROBBINS                          JAMES G. (JERRY) WOODALL
46 North Third Street, Suite 719            District Attorney General
Memphis, TN 38103
(On Appeal Only)                            SHAUN A. BROWN
                                            Assistant District Attorney General
                                            225 Martin Luther King Drive
                                            P.O. Box 2825
                                            Jackson, TN 38302-2825




OPINION FILED:


AFFIRMED

JOE G. RILEY, JUDGE
                                      OPINION



       In July 1998, defendant pled guilty to theft of property over $1,000, a Class
D felony, and received a four-year community corrections sentence. In November

1998, the trial court issued a revocation warrant due to alleged violations of her

community corrections sentence. The trial court revoked community corrections,
and defendant appeals as of right charging:

       (1)    the underlying revocation warrant is void since it did not
              contain a sworn affidavit upon which the trial judge
              could make a determination of probable cause; and
       (2)    the trial court abused its discretion by revoking
              community corrections and ordering her sentence
              served with the Tennessee Department of Correction
              (T.D.O.C.).

We find the warrant was valid, and that the trial court did not abuse its discretion.

Therefore, we AFFIRM the judgment of the trial court in all respects.




                                      I. FACTS



       In July 1998, defendant pled guilty to theft over $1,000 and received a four-

year community corrections sentence. In November 1998, case officer Sherry Hall

filed an unsworn “affidavit” with the trial court alleging defendant’s violation of her

community corrections sentence. Specifically, the document charged defendant
with failure to report, failure to submit to drug screens and failure to pay fines and

costs. Based upon Hall’s written allegations, the trial court issued a warrant for

defendant’s arrest which was executed in February 1999.


       At the revocation hearing, defendant admitted her failure to report and failure

to pay fines and costs. She also admitted failure to report an arrest (a ground newly
raised by the state at the hearing). However, she contested the allegation that she

failed to submit to a drug screen and offered explanations for the other violations.



       After hearing testimony from Sherry Hall and defendant, the trial court found
defendant in violation, revoked her community corrections sentence and ordered the

sentence served with T.D.O.C.




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                           II. VALIDITY OF WARRANT



       Initially, defendant challenges the validity of the revocation warrant issued by
the trial court. She claims that an arrest warrant must be based upon sworn facts

from which the trial court can make a determination of probable cause. See Tenn.

R. Cr. P. 3 and 4. Because the trial court issued this warrant based upon unsworn
allegations, defendant argues that the warrant and all subsequent proceedings are

void. We respectfully disagree.



       Revocation procedures for probation and community corrections are treated

similarly. State v. Harkins, 811 S.W.2d 79, 83 (Tenn. Crim. App. 1996). Tenn.

Code Ann. § 40-35-311(a) provides that “[w]henever it comes to the attention of the
trial judge that any defendant, who has been released upon suspension of sentence

. . . has violated the conditions of probation, the trial judge shall have the power to

cause to be issued under such trial judge's hand a warrant for the arrest of such
defendant.” (Emphasis added). Thus, unlike an arrest warrant issued pursuant to

the Tennessee Rules of Criminal Procedure, issuance of a probation revocation

warrant is governed by statute and does not require an affidavit. State v. Roger

Dale Chisam, C.C.A. No. 85-194-III, Franklin County (Tenn. Crim. App. filed

December 13, 1985, at Nashville), perm. to app. denied (Tenn. 1986). Revocation
of a community corrections sentence is governed by Tenn. Code Ann. § 40-36-

106(e)(4).   This statute does not set forth any specific requirements for the

revocation warrant.




       In this case, the trial court received written allegations from the case officer
that defendant violated several conditions of her community corrections sentence.

This was sufficient for the revocation warrant to be issued for defendant. This issue

is without merit.




                III. COMMUNITY CORRECTIONS REVOCATION



       Defendant admitted several violations of her community corrections

sentence. Nevertheless, she claims that, in light of her explanations for the

                                          3
violations, the trial court abused its discretion by revoking community corrections

and ordering her sentence to be served with T.D.O.C.



       Revocation of probation and a community corrections sentence is subject to

an abuse of discretion standard of review, rather than a de novo standard. Harkins,

811 S.W.2d at 82. Discretion is abused only if the record contains no substantial
evidence to support the conclusion of the trial court that violation of a community

corrections sentence has occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832

(Tenn. Crim. App. 1997). Proof of a violation need not be established beyond a
reasonable doubt, and the evidence need only show that the trial judge exercised

a conscientious and intelligent judgment, rather than acting arbitrarily. Gregory, 946

S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).


       Defendant admitted her failures to report, to pay fines and costs, to perform

community service and to report a new arrest. Furthermore, defendant failed to
make herself available for a drug screen as requested by her case officer at their

one and only office visit on October 27, 1998.



       In her testimony, defendant offered the following explanations for her

violations:
       (1)    her failure to report stemmed from working twelve-hour
              shifts, often at night, which caused her to oversleep
              and/or miss regular office hours;

       (2)    her failure to make payments toward her fines and
              costs stemmed from her need to pay rent and utilities
              as the sole support for her family;

       (3)    her failure to complete community service was due to
              scheduling coordination problems with her job; and

       (4)    the failure to report her new arrest stemmed from the
              fact that the community corrections office blocked
              collect calls from the jail, and defendant had no phone
              at home.



       The trial court determined that, in spite of several opportunities to do so,
defendant failed to report to her case officer; made no effort to pay her fines, costs

and restitution; failed to complete any community service; and failed to report a new

arrest. Furthermore, the trial court found defendant’s explanations for those failures
insufficient in light of the amount of time she was on release in the community and

revoked her community corrections sentence.


                                          4
       Our review of the trial court’s decision reveals no abuse of discretion. This

issue is without merit.




                                  CONCLUSION



       Based upon the foregoing, we AFFIRM the trial court’s revocation of

community corrections.




                                               ____________________________
                                                JOE G. RILEY, JUDGE




CONCUR:




____________________________
JOHN EVERETT WILLIAMS, JUDGE




____________________________
ALAN E. GLENN, JUDGE




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