          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON         FILED
                            OCTOBER 1999 SESSION      March 3, 2000

                                                  Cecil Crowson, Jr.
                                                Appellate Court Clerk
STATE OF TENNESSEE,                  *    No. W1999-01975-CCA-R3-CD

      Appellee                       *    BENTON COUNTY

VS.                                  *    Hon. Julian P. Guinn, Judge

MICHAEL GERARD COPPOLA,              *    (Probation Revocation)

      Appellant.                     *



For the Appellant                         For the Appellee

Vicki S. Snyder                           Paul G. Summers
Assistant Public Defender                 Attorney General and Reporter
117 North Forrest Avenue
Camden, TN 38320                          R. Stephen Jobe
                                          Assistant Attorney General
                                          Cordell Hull Building, 2nd Floor
                                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          Robert “Gus” Radford
                                          District Attorney General

                                          Beth Boswell
                                          Assistant District Attorney General
                                          P.O. Box 503
                                          Camden, TN 38320




OPINION FILED:



REVERSED AND REMANDED



NORMA MCGEE OGLE, JUDGE
                                      OPINION

       On April 28, 1997, the appellant, Michael Gerard Coppola, pled guilty in the

Benton County Circuit Court to an array of offenses. The plea agreement provided

for an effective six-year sentence with the Tennessee Department of Correction

(T.D.O.C.) and payment of $3,363.10 of restitution to various victims. In March

1998, appellant completed boot camp and T.D.O.C. released him to probation, the

terms of which required payment of the previously ordered restitution. The sole

issue on appeal is the trial court’s revocation of probation for failure to pay

restitution. Based upon our conclusion that no probation violation occurred, we

REVERSE and REMAND to the trial court.



                              I. Factual Background

       On April 28, 1997, appellant pled guilty to nine offenses including aggravated

burglary, burglary, several thefts, fraudulent use of a credit card and contributing to

the delinquency of a minor. The plea agreement provided for an effective sentence

of six years in the T.D.O.C. and payment of court-ordered restitution in the following

amounts:

       1.     $ 909.06 to Farmer’s Insurance Company
       2.     $ 250.00 to Sam Dodd
       3.     $ 394.79 to Factory Jewelry
       4.     $1,327.85 to G.M. Card
       5.     $ 481.40 to Bobby Spoon



       On March 18, 1998, upon appellant’s completion of boot camp, T.D.O.C.

placed him on probation pursuant to Tenn. Code Ann. § 40-20-206 and imposed

eleven conditions of release which included:

       2.     I will obey the laws of the United States, or any State in
              which I may be, as well as any municipal ordinances.
       ...

       10.    I will pay restitution/fines as determined by the court.



       On February 17, 1999, a probation violation report issued which alleged

violation of rules two and ten. An amendment to that report alleged further violation



                                          2
of rule two based upon a new charge of evading arrest in conjunction with law

enforcement’s attempt to serve the violation warrant.



       On March 19, 1999, the trial court conducted a probation violation hearing

in which no sworn testimony was received. It properly declined to revoke probation

based upon arrests alone.1               See State v. Mark Crites, C.C.A. No.

01C01-9711-CR-00512, Sumner County (Tenn. Crim. App. filed February 9, 1999,

at Nashville). However, based upon the unsworn dialogue with appellant, the trial

court determined that appellant failed to pay the court-ordered restitution despite an

ability to do so. The appellant contended his probation had been transferred to

South Carolina, and the probation officer there refused to accept his proffered

restitution payments. The trial court revoked probation, stating:

               “[W]hat I’m looking at is the man’s admission that he
               could have made some payments but in fact he has
               made absolutely no payments. Now, there’s the
               problem that you’ve got. And that’s what the Court
               finds to be sufficient grounds for revocation.”



                                       II. Analysis

       A trial court may revoke probation and order the imposition of the original

sentence upon a finding by a preponderance of the evidence that the person has

violated a condition of probation. Tenn. Code Ann. §§ 40-35-310, 311; 40-20-206.

The decision to revoke probation rests within the sound discretion of the trial court.

State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of

probation is subject to an abuse of discretion standard of review, rather than a de

novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is

abused only if the record contains no substantial evidence to support the conclusion

of the trial court that a violation of probation has occurred. Id.; State v. Gregory, 946

S.W.2d 829, 832 (Tenn. Crim. App. 1997).



       1
         The trial court’s probation revocation order indicates it also considered appellant’s
new arrests as a basis for revocation. However, where there are discrepancies between the
transcript and the written record, the transcript controls. See State v. Zyla, 628 S.W.2d 39,
42 (Tenn. Crim. App. 1981) (where transcript and court minutes conflict, transcript controls).

                                              3
       In order to revoke probation based upon an alleged failure to pay restitution,

the trial court must find on the record that (1) the failure to pay was willful; and (2)

alternatives to imprisonment are inadequate to meet the State’s interests in

punishment, deterrence and insuring victims’ restitution. State v. Dye, 715 S.W.2d

36, 41 (Tenn. 1986).       Where the trial court fails to make these findings,

“fundamental fairness requires that [appellant] remain on probation.” Bearden v.

Georgia, 461 U.S. 660, 674, 103 S.Ct. 2064, 2074, 76 L.Ed.2d 221, 234 (1983).



       With regard to the restitution due in this case, the T.D.O.C. certificate

establishing the terms of appellant’s probation reads, “I will pay restitution/fines as

determined by the court.” The trial court sentenced appellant on April 28, 1997, to

six years in the T.D.O.C., and understandably did not establish a specific payment

schedule. Appellant then served part of his sentence in a special alternative

incarceration unit (boot camp) from which he was released to probation on March

18, 1998, for the balance of his sentence. See Tenn. Code Ann. § 40-20-206.

Nevertheless, without an established time frame for payment of restitution, we

conclude that appellant was not in violation of probation at the time of the revocation

hearing. See State v. Sherry Jenno, C.C.A. No. 01C01-9811-CC-00437, Marion

County (Tenn. Crim. App. filed June 2, 1999, at Nashville).



       Furthermore, it is clear from the probation revocation hearing transcript that

the trial court failed to follow the dictates of Dye in deciding to revoke appellant’s

probation for failure to pay restitution.      Although the trial court implied that

appellant’s failure to pay was willful, the court failed to specifically find that

alternatives to imprisonment were inadequate to meet the state’s interests in

punishment, deterrence and insuring victims’ restitution. Dye, 715 S.W.2d at 41.



       We conclude, under the facts of this case, appellant’s failure to pay

restitution was not a proper basis for revocation of his probation. However, it would



                                           4
appear the appellant, victims or district attorney may now petition the trial court to

set a schedule of payments. See Tenn. Code Ann. § 40-35-304(f).



                                      III. Conclusion

       Based upon the foregoing, we reverse the revocation and remand to the trial

court to reinstate probation2 and conduct such other proceedings as may be

appropriate.3




                                                      ___________________________
                                                      Norma McGee Ogle, Judge



CONCUR:



____________________________
John H. Peay, Judge




____________________________
Alan E. Glenn, Judge




       2
         Upon remand, the trial court may wish to consider whether any of the orders of
restitution are improper under State v. Alford, 970 S.W.2d 944 (Tenn. 1998).
       3
        As previously noted, the trial court acted properly when it declined to revoke
probation based solely upon new arrests where the state presented no proof regarding the
pending charges. We acknowledge the possibility that those charges may serve as legitimate
bases for revocation provided the state presents testimony as to the underlying facts, or there
were subsequent convictions entered on the charges.

                                              5
