         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON                FILED
                            MARCH SESSION , 1999            June 10, 1999

                                                         Cecil Crowson, Jr.
                                                        Appellate Court Clerk
STATE OF TENNESSEE,                )   C.C.A. NO. 02C01-9806-CC-00177
                                   )
           Appellee,               )
                                   )   MADISON COUNTY
V.                                 )
                                   )
                                   )   HON. ROY B. MORGAN, JR., JUDGE
HARR Y LEE GOF F, JR.,             )
                                   )
           Appe llant.             )   (VEHICL E BUR GLARY )



FOR THE APPELLANT:                      FOR THE APPELLEE:

CLIFFORD K. McGOWN, JR.                 JOHN KNOX WALKUP
113 North Court Square                  Attorney General & Reporter
P.O. Box 26
Wa verly, TN 37185                      GEORGIA BLYTHE FELNER
(On App eal Only)                       Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
GEORGE MORTON GOOGE                     425 Fifth Avenue North
District Public Defender                Nashville, TN 37243

STEPHEN P. SPRACHER                     JAMES G. WOODALL
Assistant Public Defender               District Attorn ey Ge neral
227 West Baltimore Street
Jackson, TN 38301                       JAMES W. THOMPSON
(At Tr ial)                             Assistant District Attorney General
                                        P.O. Box 2825
                                        Jackson, TN 38302




OPINION FILED ________________________

JUDG MEN T AFF IRME D;
REMANDED TO TRIAL COURT

THOMAS T. WOODALL, JUDGE
                                   OPINION
      The Defendant, Harry Lee Goff, Jr., appeals as of right following the

revocation of his probation by th e Circuit Court of Madison C ounty. Defendant was

indicted for vehicular burglary and theft of property with a value of less than $500.00.

He pled nolo contendere to vehicular burglary and the theft charge was dismissed

in exchange for a two (2) year sentence subject to judicial diversion under

Tennessee Code Annotated section 40-35-313. Therefore, no judgment of guilt was

entered. Under the terms of this se ntence, De fendant was ordered to pe rform two

hundred (200) hours of public service work, pay restitution in the amount of $80.00,

and was ordered to comply with the standard provisions of probation under

supervision of the Community Corrections program. As a result of alleged violations

of the terms of his proba tion, a hearing was held before the trial court on May 12,

1998. Defenda nt’s probation wa s revoked an d he was tak en into custod y to serve

his sentence. The Defendant conten ds that the trial court erre d in orde ring him to

serve the rem ainde r of his s enten ce in the Madison County Jail or workhouse after

his probation wa s revoked. W e affirm the judgment of the trial court, but remand for

proceedings consistent with this opinion.



      At the revocation hearing, Janey McNatt testified that Defendant was placed

in the program in May 1997 to serve a two (2) year sentence on probation . On

December 2, 1997, D efendant was convicted of assault.                Other charges of

contributing to the delin quenc y of a min or and e ncoura ging thos e mino rs to shoplift

were pendin g at the tim e of the revocation hearing.          McNatt stated that the

Defendant admitted to consuming alcohol while he was in Community Corrections,




                                           -2-
which she explained was specifically in violation of the terms of that probation. In

addition, when Defendant was arrested for the assault, he failed to notify that arrest

to his Com munity Corrections o fficer, another violation of his probation. Defendant

did not provid e evide nce o f his employment during this probation period, except for

a brief four (4) or five (5) week period. Finally, he failed to report to his probation

officer and to pay his fees.



      The Defe ndan t testified at the h earing and a dmitte d that h e did n ot pers onally

inform his proba tion officer of h is arrest, although D efendant state d he did leave a

message on the officer’s answ ering machine. He further admitted that he did not

have steady emplo ymen t and wa s convicte d of assa ult. Defendant stated that the

probation officer testified truthfully regarding his violations of the terms of probation.



      The trial court ordered Defendant’s sentence of probation to be revo ked, with

the Defendant to serve the remainder of his two (2) year sentence in the Madison

Coun ty Jail or Workhouse. The trial court entered a “Revocation Order,” however

no judgment of guilt was entered. Tennessee Code Annotated section 40-35-313

states that “[u]pon violation of a c ondition of the probation, the court may enter an

adjudication of gu ilt and proceed a s otherwise pro vided.”



      Because the trial c ourt faile d to en ter a jud gme nt of D efend ant’s g uilt, this

case must b e rema nded to enter the judgment reflecting the conviction and sentence

accord ing to the p rovisions o f Tenn essee Code Annota ted sectio n 40-35 -313.



      The order of the trial court revoking the probation pursuant to judicial diversion

and requiring Defe ndan t to serve a two (2 ) year s enten ce in the Ma dison Coun ty Jail

                                            -3-
or Wo rkhouse is affirm ed. However, this case is remanded to the trial court to enter

the stand ard judg ment o f conviction .



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOSEPH M. TIPTON, Judge




                                           -4-
