            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                         AT KNOXVILLE
                                                               FILED
                     NOVEMBER SESSION, 1999
                                                               January 4, 2000

                                                            Cecil Crowson, Jr.
                                                           Appellate Court Clerk



JEFFREY SCOTT MILES,          *
                              *    No. 03C01-9903-CR-00103
      Appellant,              *
                              *    CUMBERLAND COUNTY
vs.                           *
                              *    Hon. LEON BURNS, JR., Judge
STATE OF TENNESSEE,           *
                              *    (Writ of Error Coram Nobis)
      Appellee.               *



For the Appellant:                 For the Appellee:

Jeffrey Scott Miles, Pro Se        Paul G. Summers
NECX CCA Caller #1                 Attorney General and Reporter
Roan Mountain, TN 37687
                                   Patricia C. Kussmann
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   425 Fifth Avenue North
                                   2d Floor, Cordell Hull Building
                                   Nashville, TN 37243-0493


                                   William Edward Gibson
                                   District Attorney General

                                   David Patterson
                                   Asst. District Attorney General
                                   145 S. Jefferson Avenue
                                   Cookeville, TN 38501




OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                             OPINION



        The appellant, Jeffrey Scott Miles, appeals from the trial court’s denial of the

writ of error coram nobis. Proceeding pro se, the appellant seeks issuance of the

writ in order to correct errors from the judgment of the trial court revoking his

probation and remanding him to the custody of the Department of Correction.



        After review of the record, we affirm the denial of the issuance of a writ of

error coram nobis.



                                          Background

        In June of 1997, the appellant pled guilty to aggravated assault and received

a split confinement sentence of four years with thirty days to be served in the jail.

Shortly after his release from the jail and while on probation, the appellant was again

charged with violation of an order of protection, aggravated assault and reckless

endangerment.1 Based upon these new charges, a probation violation warrant was

obtained charging violation of “Rule #1,” failure to obey the law.



        The trial court conducted a revocation hearing on September 26, 1997.

Based upon the testimony of the victim and a witness the trial court found the proof

established a violation of “Rule #1" and ordered revocation of the appellant’s

suspended sentence. In view of the appellant’s incarceration in the Department of

Correction, the three pending charges against the appellant were subsequently

dismissed by the State.



        On September 30, 1998, the appellant filed a pro se petition for writ of error



        1
          The victim of the appellant’s assault was his girlfriend, Tammy Nelson. The first
aggravated assault resulted in broken bones to her face that had to be wired back into place. The
assault leading to the probation revocation stemmed from the appellant’s action in dragging the
victim approximately twenty feet with his vehicle.

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coram nobis relief. In the petition, the appellant alleged (1) he “has never had the

opportunity to defend himself from the falsity of the new charges for which his

probation was revoked and incarcerated;” (2) newly discovered evidence in that he

learned that the day after the incident Tammy Nelson was overheard by the

appellant’s mother telling a representative of the District Attorney’s Office that she

did not want the appellant to go to prison over this incident; and (3) “no preliminary

hearing . . . of the new charges were ever had by the [appellant].” As such, the

appellant seeks a new hearing on his violation of probation warrant.



                                         Analysis



        A writ of error coram nobis, an exceedingly narrow remedy, will lie for

subsequently or newly discovered evidence only if the petition relates (1) the

grounds and the nature of the newly discovered evidence; (2) why the admissibility

of the newly discovered evidence may have resulted in a different judgment had the

evidence been admitted at the previous trial; (3) the petitioner was without fault in

failing to present the newly discovered evidence at the appropriate time; and (4) the

relief sought by the appellant. State v. Hart, 911 S.W.2d 371, 374-375 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1995). Moreover, the decision to grant or

deny a petition for the writ of error coram nobis on the ground of newly discovered

evidence rests within the sound discretion of the trial court. Hart, 911 S.W.2d at

375.



       In his petition, the appellant asserts as newly discovered evidence (1) that he

was never convicted of the charges leading to his revocation; and (2) that his mother

would testify that on the day after the incident she overheard Tammy Nelson telling

the District Attorney’s Officer that she did not want the appellant to go to prison over

this incident. Initially, we note that the appellant has failed to specifically

encompass these allegations in his appellate brief. Thus, normally, these issues


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would be waived. See Tenn. R. App. P. 27(a)(7). Nonetheless, in consideration of

the pro se posture of this appeal and because these allegations are tangentially

connected to his assertion that his probation was revoked absent proof of his guilt,

we proceed to address both of these claims.



       First, the appellant has offered no factual reason as to why he was without

fault in failing to present his mother’s testimony at the time of the revocation hearing.

Hart, 911 S.W.2d at 374-375. We fail to find such testimony from the appellant’s

mother, who testified at the revocation hearing, “newly discovered.” Even if this

evidence was “newly discovered,” the testimony of his mother constitutes hearsay

evidence, not legal evidence. See James E. Newsome v. State, No. 01C01-9710-

CR-00459 (Tenn. Crim. App. at Nashville, Sept. 30, 1998), perm. to appeal denied,

(Tenn. Apr. 19, 1999). Moreover, there is no indication that the admission of this

testimony would have resulted in a different judgment. See Hart, 911 S.W.2d at

374-375. Thus, the allegation is without merit.



       Additionally, the fact that the appellant was never convicted of the charges

leading to his revocation is irrelevant to the trial court’s decision. First, the State is

not required, in a revocation hearing, to prove the appellant’s guilt of the offenses

forming the basis of the revocation beyond a reasonable doubt. See State v.

Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Although a mere

accusation is not sufficient to justify revoking probation, the State need only prove

by a preponderance of the evidence that the appellant violated the terms of his

probation by failing to obey the laws of the state. See Tenn. Code Ann. § 40-35-

311(e) (1998 Supp.). Accordingly, the appellant’s allegation that his due process



rights were violated because the State failed to prove his guilt of the new charges is

without merit.




                                           4
       Finally, the appellant contends that the failure of the court to hold a

preliminary hearing prior to revoking his probationary status violated his due process

rights. This claim, as it alleges constitutional due process error, does not qualify for

relief in the form of a writ of error coram nobis. Additionally, although this claim is

cognizable in a post-conviction petition, see Tenn. Code Ann. § 40-30-203 (1997),

this court has previously held that Tennessee’s statutorily mandated proceedings

“more than comply with the mere minimal requirements stated in . . . Gagnon.” See

Massey v. State, 929 S.W.2d 399, 401-402 (Tenn. Crim. App. 1996); see also State

v. Samuel Kimoe Robinson, No. 01C01-9803-CC-00153 (Tenn. Crim. App. at

Nashville, Mar. 31, 1999), perm. to appeal denied, (Tenn. Jun. 28, 1999). This

claim of error is without merit.



       The order of the trial court denying the appellant the relief requested is

affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:



______________________________________
ALAN E. GLENN, Judge


______________________________________
JOE H. WALKER, III, Special Judge




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