            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE
                                                          FILED
                                                          February 18,1999
                            DECEMBER 1998 SESSION
                                                          Cecil W. Crowson
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                  *       C.C.A. NO. 01C01-9801-CC-00010

      APPELLANT                      *       DICKSON COUNTY

VS.                                  *       Hon. Allen Wallace, Judge

MICHAEL CHANEY,                      *       (Probation Revocation)

      APPELLEE.                      *




For Appellant:                       For Appellee:

Shipp R. Weems                       John Knox Walkup
District Public Defender             Attorney General and Reporter
P.O. Box 160                         450 James Robertson Parkway
Charlotte, TN 37036                  Nashville, TN 37243-0493

Carey J. Thompson                    Daryl J. Brand
Assistant Public Defender            Senior Counsel
P.O. Box 160                         425 Fifth Avenue North
Clarksville, TN 37036                Nashville, TN 37243-0493

                                     Erik W. Daab
                                     Legal Assistant
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     Robert Wilson
                                     Assistant District Attorney General
                                     P.O. Box 580
                                     Charlotte, TN 37036


OPINION FILED: ____________________


REVERSED

NORMA MCGEE OGLE, JUDGE




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                                       OPINION

               The appellant, Michael A. Chaney appeals as of right the order of the

Circuit Court of Dickson Court revoking his probation. On May 13, 1996, the trial

court entered a judgment of conviction pursuant to the appellant’s plea of guilt to

one count of vehicular homicide, a Class C felony. The trial court sentenced the

appellant to three years incarceration in the Tennessee Department of Correction,

but suspended the appellant’s sentence and placed him on supervised probation.

Special conditions of the appellant’s probation included paying court costs and

completing two hundred hours of community service. On December 4, 1997, the

trial court revoked the appellant’s probation and ordered that the appellant serve his

sentence in the Tennessee Department of Correction. Following a review of the

record in this case, we reverse the judgment of the trial court.



         The trial court issued the probation revocation warrant on November 7, 1997,

pursuant to the probation officer’s affidavit. The probation officer alleged in his

affidavit that the appellant had been arrested and charged with several drug-related

offenses, had failed to perform any community service, and owed $ 1624.00 in court

costs.



         The trial court issued the probation revocation hearing on November 25,

1997. At the hearing, that State presented the testimony of Cliff Slayton, the

appellant’ s probation officer. Mr. Slayton testified that the appellant was assigned

to him on May 13, 1996. He further stated that he had reviewed the conditions of

the appellant’s probation with the appellant and that the appellant had affirmed that

he understood those conditions. Mr. Slayton confirmed that the appellant had been

arrested and charged with several drug-related offenses and that those cases were

still pending. Additionally, he confirmed that the appellant had not performed any


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             community service during the almost eighteen months of his probation.1 Finally, he

             testified that the appellant currently owed $ 1,624.00 in fines and court costs.

             However, he conceded that the appellant had originally owed $ 3,289.00 and was

             more or less on schedule with respect to the payment of these fines and costs. He

             concluded that he had primarily issued the warrant due to the appellant’s recent

             arrest.



                       In revoking the appellant’s probation, the trial court declined to consider the

             charges pending against the appellant.2 The trial court revoked the appellant’s

             probation due to his failure to perform any community service. On appeal, the

             appellant argues that, because Mr. Slayton did not testify concerning the appellant’s

             schedule for completing community service and because the Public Service Work

             Coordinator did not testify at the probation revocation hearing, the record does not

             support the trial court’s exercise of discretion.3 Essentially, the appellant argues

             that eighteen months of his probationary period remained in which he could

             complete the two hundred hours of community service ordered by the trial court.



                       A trial court may revoke a defendant’s probation when it finds that the

             probationer has violated the conditions of probation. See Tenn. Code Ann.§ 40-35-

             310 (1997). In determined whether or not to order revocation, the trial judge need

             not find beyond a reasonable doubt that a violation of the conditions of probation



         1
         Mr. Slayton’s testimony concerning the appe llant’s failure to perform comm unity service was elicited
by defense couns el during cross exam ination. Mr. Slayton testified that Mr. David Deavors, the Public Service
W ork Coord inator, was mon itoring the ap pellant’s co mm unity service activity and s ubm itting a repo rt to him
each month.

         2
          The State, in order to rely on arrests as a violation to revoke prob ation , mu st pro duc e evid enc e in
the usual form of testimon y to establish probable cause a probationer has com mitted another offense.” State
v. Ellison, No. 01C1-9708-CR-00361,1998 WL 272955, at *2 (Tenn. Crim. App. At Nashville, May 29, 1998).
In this case, the State presented no testimony or evidence other than the mere fact of the appellant’s arrests.
“Being arrested and charged with a crime is not a violation of a condition of the appellant’s probation.” State
v. Carter, No. 03C01-9506-CR-00159, 1996 W L 175 969 , at *2 ( Ten n. Cr im. A pp. a t Kno xville, A pril 16, 1996).

         3
          The pros ecu tor ar gue s to th e trial ju dge that, g ene rally, s om e community service is scheduled each
mon th during the probation al period. However, argument by counsel does not constitute evidence. State v.
Robe rts, 755 S.W. 2d 833,836 (Tenn. Crim. App. 1988)

                                                                     3
has occurred. The existence of a violation need only be supported by a

preponderance of the evidence. Tenn. Code Ann. § 40-35-311 (d) (1996). On

appeal, the record must demonstrate that the trial judge has not acted arbitrarily,

and has exercised conscientious judgment. State v. Harkins, 811 S.W. 2d 79,82

(Tenn. 1991): State v. Gregory, 946 S.W. 2d 829,832 (Tenn. Crim. App. 1997). In

other words, this court will not reverse the judgment of the trial court absent an

abuse of discretion, reflected in the record by an absence of substantial evidence to

support the trial judge’s findings. Id.



       We must agree with the appellant that there is an absence of substantial

evidence in the record to support the judgment of the trial court. As note above,

while the State need not establish a violation of probation beyond a reasonable

doubt, the State must present sufficient evidence to permit a conscientious

judgment by the trial court. In the instant case, the record reflects only that the

appellant was on schedule in paying court costs ordered by the court and had

sufficient time remaining on probation in which to complete his community service.

The order of probation does not reflect the imposition of any schedule according to

which the appellant was to complete his community service. The State declined to

present testimony by either Mr. Slayton or Mr. Deavors concerning a schedule of

community service. Indeed, Mr. Slayton’s testimony suggested that he would not

have issued the probation violation warrant solely on the basis of the appellant’s

failure to complete any portion of his community service.



       In State v. Stubblefield, No. 02C01-9509-CC-00267, 1997 WL 335025, at * 2

(Tenn. Crim. App. At Jackson, June 19, 1997), we observed that “it is fundamental

to our system of justice through due process that persons who are to suffer penal

sanctions” have reasonable notice of conduct that will constitute a violation of

probation. The record is devoid of any evidence that the appellant was notified that

he must perform his community service during the first half of his probationary

                                           4
period or according to a predetermined schedule. Accordingly, we reverse the

judgment of the trial court.




                                       NORMA MCGEE OGLE, Judge



CONCUR:



JOHN H PEAY, Judge



JOSEPH M. TIPTON, Judge




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