         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                         AUGUST 1999 SESSION       FILED
                                                   October 31, 1999

                                                  Cecil Crowson, Jr.
                                                 Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )
            Appellee,             )   C.C.A. No. 02C01-9807-CR-00201
                                  )
vs.                               )   Shelby County
                                  )
RICIO L. CONNER,                  )   Hon. James Beasley, Jr., Judge
                                  )
            Appellant.            )   (Probation Revocation)
                                  )


FOR THE APPELLANT:                    FOR THE APPELLEE:

JEFFREY S. ROSENBLUM                  PAUL G. SUMMERS
Attorney at Law                       Attorney General & Reporter
Rosenblum & Reisman, PC
80 Monroe Avenue, Suite 560           PATRICIA C. KUSSMANN
Memphis, TN 38103                     Assistant Attorney General
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      JOHN W. PIEROTTI
                                      District Attorney General

                                      SCOTT GORDON
                                      Asst. District Attorney General
                                      Criminal Justice Complex, Ste. 301
                                      201 Poplar Avenue
                                      Memphis, TN 38103




OPINION FILED: _____________


AFFIRMED IN PART; VACATED IN PART; REMANDED


JAMES CURWOOD WITT, JR., JUDGE
                                       OPINION



              The defendant, Ricio Conner,1 appeals the Shelby County Criminal

Court’s order revoking his probation. He asserts that (1) the trial court erroneously

applied the wrong standard of proof in the revocation proceeding, (2) the trial court

erred in concluding that it had no authority to do anything but reincarcerate the

defendant once a violation of probation was established, and (3) as an alternative

argument, the trial court lacked jurisdiction to determine whether a violation of

probation occurred.2 We affirm in part and vacate in part the trial court’s ruling.



              On January 11, 1995, the defendant pleaded guilty to possession of

more than one-half gram of cocaine with intent to deliver. The trial court imposed

an eight year sentence in the Tennessee Department of Correction (“TDOC”) to run

concurrently with an effective sentence previously imposed in two other cases of an

unspecified nature. TDOC placed the defendant in the “boot camp” program and

released him on probation after nine months’ incarceration.



              While on probation, the defendant, by his own admission, was

arrested three or four times. The record on appeal shows the following arrests and

dispositions as of the date of the revocation hearing:

       (1) June 5, 1996, possession of marijuana, guilty plea and conviction;

       (2) June 5, 1996, driving on a revoked license, guilty plea and

       conviction;

       (3) June 12, 1997 (Mississippi), simple assault, pending;

       (4) June 19, 1997, driving on revoked license, second offense, bound

       over to grand jury;

       (5) June 19, 1997, theft of property over $1,000 in value, two counts,

       1
        The defendant’s name is spelled Ricio Conner in the indictment but is
spelled Rico Conner in other court documents. In keeping with this court’s
practice, we use the spelling as it appears in the indictment.
       2
       We have consolidated the defendant’s first two appellate issues into one
and have reordered the treatment of the three aggregate issues.

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       bound over to grand jury;

       (6) August 8, 1997, reckless endangerment, evading arrest,

possession of Schedule VI controlled substance, and driving on             revoked

license, third offense, bound over to grand jury.

The defendant’s probation officer testified that the defendant violated his probation

by being charged with new offenses while on probation, failing to report the new

charges except for the 1996 marijuana charge, leaving the state without permission

by going to Mississippi in 1997, using marijuana, and failing to pay his probation and

supervision fees.



               The trial court found that the defendant violated the terms of his

probation and ordered him to be incarcerated in the TDOC. In its revocation order,

the trial court said:

       [T]here are several mitigating circumstances . . . . Had the Court
       placed Mr. Conner on probation, the Court would certainly consider
       placing Mr. Conner back on probation with some stricter conditions or
       putting him into a community corrections program or some other
       alternative sentence. However, the Court notes that it did not place
       Mr. Conner on probation but instead that Mr. Conner was placed on
       probation by the Tennessee Department of Correction[]. The Court
       hereby finds that under such circumstances it does not have any
       discretion with regard to how to punish Mr. Conner for violating
       his probation. The Court finds that it can only determine that Mr.
       Conner has violated probation and place him back into the Tennessee
       Department of Correction[].

In his oral findings, the trial judge expressed dismay concerning the TDOC’s release

of the defendant on probation after serving nine months in the “boot camp” program

and perplexity about the legal status of the revocation proceeding. After reciting the

defendant’s history of reoffending and failing to appear since the inception of his

cases in the trial court, the judge granted the revocation petition and said, “I really

don’t know that I have authority to modify, place him under Community Corrections,

or something else. I don’t believe I have that authority. If I do, let [the Court of

Criminal Appeals] tell me and I’ll be glad to review it and revisit it.”



               In his first issue, the defendant complains that the trial court erred in

applying a “probable cause” standard of proof in the revocation proceeding. We


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agree with the defendant that the proper standard in this case was preponderance

of the evidence. See Tenn. Code Ann. § 40-35-311(e) (1998).



              We conclude, therefore, that the trial court misspoke when it referred

to a “probable cause” standard of proof; however, this error was harmless. The

revocation of probation is committed to the sound discretion of the trial judge. State

v. Harkins, 811 S.W.2d 79, 80 (Tenn. Crim. App. 1991). In order for an abuse of

discretion to occur, the reviewing court must find that the record contains no

substantial evidence sufficient to support the trial court’s conclusion that the

violation of the terms of probation has occurred. Id. at 82; State v. Delp, 814

S.W.2d 395, 398 (Tenn. Crim. App. 1980). In view of the preponderance of the

evidence standard of proof and the abuse of discretion standard of review on the

question of whether a violation of probation occurred, see State v. Aaron Switzer,

No. 03C01-9211-CR-00380, slip op. at 3 (Tenn. Crim. App., Knoxville, July 23,

1993), the record contains overwhelming evidence that the defendant violated the

terms of his probation in numerous ways. The trial court’s misstatement in referring

to a probable cause standard of proof is clearly harmless. See Tenn. R. Crim. P.

52(a).



              In his second issue, the defendant essentially argues that the trial

court was willing to consider some alternative to incarceration, but it erroneously

concluded that it had no discretion or authority to do anything except order

confinement once a violation of probation had been adjudicated.



               Pursuant to Tennessee Code Annotated sections 40-20-201, -206,

and -207, the TDOC placed the defendant in “a special alternative incarceration

unit,” commonly referred to as a “boot camp” program, and released him after nine

months under “supervision” of the division of community services. Code section 40-

20-206 provides that if, after being placed into community “supervision,” a

defendant fails to comply with “the terms and conditions of supervision, . . . the



                                          4
release on supervision may be revoked by the Trial Judge pursuant to § 40-35-311.”

Tenn. Code Ann. § 40-20-206 (1997). Code section 40-35-311 prescribes the

procedure for a trial court revoking probation. In the present case, the state

concedes that this statutory scheme empowered the trial court to determine the

revocation issues and upon a finding of a violation of “probation,” to draw from the

full range of remedies available in a violation of probation case, including a

modification of the conditions of supervision and an extension of probation for up

to two years. See Tenn. Code Ann. § 40-35-308 (1997).



              We agree.        Although the trial court lost jurisdiction when the

defendant was placed in TDOC, Code section 40-20-206 reinvested the trial court

with jurisdiction once TDOC effectively placed the defendant “on probation.” See

State v. Bowling, 958 S.W.2d 362, 363 (Tenn. Crim. App. 1997). Upon determining

that the defendant violated the terms of his probation, the trial court had the

authority to modify the terms of supervision, extend the probationary period for up

to two years, or order the original sentence to be served in confinement. The trial

court was neither empowered to place the defendant on community corrections nor

to increase the defendant’s original sentence; however, it could have ordered the

defendant’s “participation in the community correction program as a condition of his

continuing on probation.” Id. at 364 (italics in original).



              In consideration of the foregoing, we conclude that the trial court erred

when it determined that it lacked authority to apply any remedy except incarceration.



              We must now determine the effect of the trial court’s misapprehension

of its authority. Initially, we point out that the confusion related to the remedy to be

applied once a violation of probation had been adjudicated and does not in any way

impugn the finding of a violation.



              With respect to remedy, the trial court’s verbal statements as they



                                           5
appear in the transcript of the revocation hearing are contrary to the written

statements that appear in the order. In both communications, the trial court

expresses perplexity about its role in the case and its authority to apply any remedy

except confinement. However, in the verbal findings, the court expresses disdain

for the defendant’s rather oblique style of testifying.       Somewhat spiritedly, it

recounts the defendant’s transgressions committed while on probation, and it

makes no mention of mitigating factors which would support a continuation of

probation in some form. These verbal statements are at odds with the statements

in the order that “several mitigating circumstances” exist and that, “[h]ad the Court

placed Mr. Conner on probation, the Court would certainly consider placing Mr.

Conner back on probation with some stricter conditions.”



              We are mindful of the rule which this court routinely applies that in the

case of a conflict between the provisions of a judgment and the provisions of the

transcript, the latter controls. See, e.g., State v. Davis, 706 S.W.2d 96, 96 (Tenn.

Crim. App. 1985). However, we do not view the order and the transcript in the

present case to be in conflict so much as they reflect a disharmony in tone. The

tone of the transcript suggests that the trial judge would not have awarded the

defendant further probation, and the tone of the order suggests that the court would

have considered probation had it perceived the opportunity. We do not find that this

is a conflict in the operative provisions of these communications which would

require our selection of the transcript as the basis for the prevailing meaning.



              We find that the sense of both the transcript and the order is that the

trial court clearly adjudicated a violation of the terms of probation but never reached

the point of adjudicating the remedy. The trial judge stated on the record that he

granted the petition to revoke because the probation conditions were imposed by

the TDOC. He then stated, “And I don’t know that I have the authority to do

anything other than that . . . . I don’t believe I have that authority.” The order states

that the trial court “can only determine that Mr. Conner has violated probation and



                                           6
place him back into the [TDOC].” These comments indicate that the trial court

never adjudicated the possible remedies.          Given these circumstances, it is

appropriate to remand the case to the trial court so that court may determine the

violation of probation remedy. It is apparent from our review of the record that a full

revocation hearing was conducted. Thus, the trial court may well decide that it can

make the required determinations without further hearing, but we leave that choice

to the trial court.



               This adjudication preempts the defendant’s third issue. The defendant

argues in the alternative to his position in the second issue that if the trial court

lacked the authority to revoke probation, by the same token it lacked jurisdiction to

issue the revocation warrant. As we have said above, Code section 40-20-206 gave

the trial court the jurisdiction to initiate and conduct revocation of probation

proceedings in the context of this case.



               We affirm the trial court’s determination that the defendant violated the

terms of his probation. We vacate the order of confinement in the TDOC and

remand the case to the trial court for determination and imposition of the violation

of probation remedy.




                                    ________________________________
                                    JAMES CURWOOD WITT, JR., JUDGE




CONCUR:




______________________________
DAVID H. WELLES, JUDGE



______________________________
JERRY L. SMITH, JUDGE


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