             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE                  FILED
                            SEPTEMBE R SESSION, 1997                 May 1, 1998

                                                                 Cecil W. Crowson
                                                                Appellate Court Clerk
STATE OF TE NNE SSE E,                   )      C.C.A. NO. 01C01-9609-CC-00411
                                         )
              Appellee,                  )
                                         )      GILES COUNTY
V.                                       )
                                         )      HON. WILLIAM B. CAIN, JUDGE
                                         )
MICH AEL H ARLAN BYR D,                  )
                                         )      (REVOCATION OF
              Appe llant.                )      COM MUN ITY CO RREC TIONS )




                              DISSENTING OPINION


              I must respectfully dissent from the res ult reach ed by m y collea gues in

this case. Judge Wade has authored a well-written opinion, and I a gree g enera lly

with his conclusions of the status of the applicable law regarding the issues

discussed. How ever, it is m y belief th at the tria l court’s judgment should be affirmed

for the rea sons sta ted here in.



              In State v. Harkins, 811 S.W .2d 79 (Tenn . 1991), our sup reme cou rt

held:


        Given the similar nature of a community corrections sentence and a
        sentence of probation, we hold that the sam e princ iples a re app licable
        in deciding whether a community corrections sentence revocation was
        proper.

Id. at 83.


              Previo usly in the opinion, the court in Harkins set forth the principles

regarding revocation of probation:
      W e take note that a trial judge may revoke a sentence of probation or
      a suspended sentence upon a finding that the defendant has violated
      the conditions of his probation or suspend ed sentenc e by a
      preponderance of the evidence. T.C.A. § 40-35-311. The judgment of
      the trial court in this regard will not b e distu rbed o n app eal un less it
      appears that there ha s been an abu se of disc retion. State v.
      Williamson, 619 S.W .2d 145 , 146 (T enn. C rim. App . 1981). In order for
      a reviewing court to be warranted in finding an abuse of discretion in a
      probation revocatio n case , it must be established that the reco rd
      contains no substantial evidence to support the conclusion of the trial
      judge that a violation of the conditions of probation has occurred. State
      v. Grear, 568 S.W.2d 285, 286 (Tenn . 1978); State v. Delp , 614 S.W.2d
      395, 398 (T enn. Crim. A pp. 1980).

Harkins, 811 S.W .2d at 82 (e mpha sis adde d).



             Regarding the petition ’s allegation that Defe ndant fa iled to report to his

comm unity corrections officer as re quired unde r the behavioral contract, the trial

judge held that “[t]o some degree , that is susta ined by the evidence, but not

sufficie ntly to cause the cour t to revoke his Com munity C orrection s.” I understand

this statement by the trial court to be that failure to rep ort was proven by a

preponderance of the evidence, but in the trial court’s opinion, the transgression was

not serious enough to revoke the sentence of Community Corrections.



             The proof showed that Glen Smith, Defendant’s Com munity Corrections

supe rvision o fficer, un equivo cally testified that Defendant failed to report to him as

required on both March 19 and March 21, 1996. Mr. Smith explained that he

advised his clients that he would be in his office to meet with them between 9:00

a.m. and 11:30 a .m. He did not make specific appointments within that time frame.

Although he might sometimes be late arriving, the latest would be 9:25 a.m.




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             Gail Owe ns, wh o is employed by South Central Human Resource

Agency and works in the same building with Mr. Smith, testified that she had a

conversation with Defendant in the office building the following week on March 28,

1996. Defend ant was informe d by Ms . Owen s that Mr. S mith was not yet in the

office. Defenda nt said that he wa s going to file a com plaint against Mr. Smith and

that he (Defen dant) “had be tter things to do than w ait around for Mr. S mith.”



             Louise Elliot, a part-time employee for the Human R esource A gency,

was called to testify by Defendant. She related how Defendant sometimes came in

to meet with Mr. Smith and the officer would not be present.             She could not

remember specific dates, but did testify that Defendant would usually come back and

see Mr. Smith if he missed him on the in itial arrival. She recalled that Defendant

usua lly cam e in a few m inutes afte r 9:00 a.m . and som etimes Mr. Sm ith was a few

minutes late arriving due to making home visits. On one occasion, she recalled the

Defendant left when he was aware Mr. Smith had not arrived, and came back later

after Mr. Smith had left for the day. The record indicates that Mr. Sm ith left that date

at his usual time for leaving the office.



             Greg Gilbert, a friend of Defendant, testified that he drove Defendant

to the Community Corrections meeting on Marc h 19, a nd tha t they ar rived a little

after 9:00 a.m. According to Gilbert, Defendant had a job interview in Ardmore at

10:00 a.m. Wh en De fendan t did not co me ou t of the office o f the Com munity

Corrections officer in twenty (20) to thirty (30) min utes, he wen t inside and Mr. Smith

was not present. They left for the job interview and later returned to the Co mm unity

Corrections office. Defendant went inside where he was advised that Mr. Smith had

already left. Gilbert further testified he was with Defendant on March 21 when they

                                            -3-
arrived at the Co mm unity Cor rections o ffice at 9:00 a.m. Gilber t did not go inside the

building, did not kn ow if Mr . Smith was in the offic e that d ay, and did not know how

long Defendant stayed at the office. Defendant did not testify at the hearing. The re

was no testimony in the record that would indicate that if the Defendant arrived and

the officer was not present, this counted towards the reporting requirement. The

record clearly indicates that it was up to each person u nder the sup ervision of Mr.

Smith to make sure tha t he or she report dire ctly to Mr. Sm ith.



              To me, a review of this record supports re vocation of the com munity

corrections sentence upon a ground of “failure to report,” especially in light of the

unrefuted testimony that Defendant’s attitude was that he “had better things to do

than wait aro und” fo r his su pervisin g office r. The majo rity opin ion ha s review ed, in

isolation, each of the individually alleged groun ds for re vocatio n and the trial c ourt’s

conclusion on each gro und. I think that Harkins supports the proposition that our

review should frame the issue in the following manner: “Defen dant’s co mm unity

corrections sentence was revoked by the trial court following an evidentiary hearing.

Is there any substantial evidence in this re cord to supp ort this result?” I believe so,

and would, on the basis of the facts and law discuss ed here in, affirm the judgm ent.

This particu lar ana lysis renders moot the issues presented by Defendant regarding

revocation of the C omm unity Correction s sen tence base d upo n Def enda nt’s

convers ation with M r. Cardin.



              For the reasons stated in this dissenting opinion, I would affirm the

judgm ent of the tria l court.




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____________________________________
THOMAS T. W OODALL, Judge




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