        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 23, 2010

               STATE OF TENNESSEE v. STEVEN F. SMITH

                 Appeal from the Criminal Court for Sullivan County
                       No. S54,177      R. Jerry Beck, Judge




                  No. E2009-02354-CCA-R3-CD - Filed June 23, 2011




N ORMA M CG EE O GLE, J., concurring.

       I concur in the majority’s conclusion that the trial court properly revoked the
Defendant’s probation. However, I disagree with the majority’s conclusion that the defense
of insanity does not apply to probation violations. I believe the defense can apply in certain
cases.

      In State v. Marsha Karen Yates, No. E2003-01900-CCA-R3-CD, 2004 Tenn. Crim.
App. LEXIS 579, at *14 (Knoxville, June 30, 2004), a panel of this court held that

              a defendant may raise a statutory defense during a revocation
              hearing to the extent that the violation of probation is based
              upon an allegation that the defendant has committed a criminal
              offense. To do otherwise would permit a defendant’s probation
              to be revoked and confinement imposed based upon the
              commission of an offense that would otherwise be barred from
              prosecution by the existence of a statutory defense.

The majority relies on several cases to conclude that insanity is not a defense to an alleged
probation violation. However, unlike the defendant in Yates and the Defendant in the instant
case, none of the defendants in those cases had been accused of violating probation for the
commission of a new criminal offense.                See State v. Lee Bell, Jr., No.
W1999-01906-CCA-R3-CD, 1999 Tenn. Crim. App. LEXIS 1302, at *4 (Jackson, Dec. 20,
1999) (defendant violated probation by failing to report and by failing to pay supervision
fees, court costs, or fines); State v. Jeffery D. Hunter, No. 01C01-9608-CC-00334, 1997
Tenn. Crim. App. LEXIS 1093, at *5 (Nashville, Oct. 30, 1997) (probation revocation
warrant issued for defendant’s threatening his family, using alcohol, and erratic behavior);
State v. Clarence Stevens, No. 03C01-9412-CR-00442, 1995 Tenn. Crim. App. LEXIS 365,
at *2 (Knoxville, May 3, 1995) (defendant violated a condition of his community corrections
sentence by having unsupervised contact with minor children); State. v. Glen R. Gregory, No.
89-157-III, 1990 Tenn. Crim. App. LEXIS 189, at *2 (Nashville, Mar. 8, 1990) (defendant
violated probation by failing to obtain his probation officer’s permission before changing his
residence or employment, failing to report to his probation officer, failing to report all arrests,
failing to allow his probation officer to visit his home, failing to follow instructions, and
failing to obtain his probation officer’s permission before contracting any major debts).
Therefore, given that the Defendant’s October 23, 2008 probation violation warrant alleged
he violated probation by committing simple assault, a Class A misdemeanor; that the defense
expert testified the Defendant was mentally defective at the time of the assault; and that the
State presented no proof to rebut the defense, I would conclude that the trial court erred by
revoking the Defendant’s probation based upon his committing a new crime.

       However, the October, 8, 2008 warrant alleged that the Defendant violated his
probation by failing to take psychotropic medications. Therefore, an insanity defense would
not apply to that probation violation, and the trial court properly revoked the Defendant’s
probation based upon evidence that he failed to take his medications as directed by
Lakeshore Mental Health.




                                                      _________________________________
                                                      NORMA McGEE OGLE, JUDGE




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