            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                        FEBRUARY SESSION, 1999       FILED
                                                     March 31, 1999

                                                Cecil W. Crowson
STATE OF TENNESSEE,          )
                                              Appellate Court Clerk
                             )   No. 01C01-9803-CC-00153
      Appellee               )
                             )   GILES COUNTY
vs.                          )
                             )   Hon. William B. Cain, Judge
SAMUEL KIMOE ROBINSON,       )
                             )   (Revocation of Probation)
      Appellant              )



For the Appellant:               For the Appellee:

Samuel K. Robinson, Pro Se       John Knox Walkup
201 East Sixth Street            Attorney General and Reporter
Columbia, TN 38401
                                 Georgia Blythe Felner
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493


                                 T. Michael Bottoms
                                 District Attorney General
                                 252 N. Military Avenue
                                 Lawrenceburg, TN 38464




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                        OPINION



       The appellant, Samuel Kimoe Robinson, proceeding pro se, appeals from the

order of the Giles County Circuit Court revoking his probation. On appeal, the

appellant contends that he was denied minimal due process guaranties.



       Following review, we affirm the judgment of the trial court.



                                     BACKGROUND



       On February 20, 1997, the appellant pled guilty to twenty-two criminal

offenses. These included aggravated burglary, burglary, theft and vandalism. For

these crimes, he received an effective fifteen year sentence with all time suspended.

The conditions of his probated sentence included scheduled restitution payments

and payments for cost and supervision fees.



       On March 13, 1997, after being on probation for three weeks, a probation

violation warrant issued which charged violation of the following rules: Rule 1, failure

to obey the law; Rule 2, failure to report all arrests; Rule 4, failure to obtain

employment; Rule 5, leaving the state without permission; Rule 6, failure to report to

probation officer; Rule 8, failure to pay required fees; Rule 9, failure to submit to

scheduled drug screens; and Rule 10, special conditions - failure to pay restitution.

Of the ten rules of probation, the appellant violated all but two; however, in his

closing statement at the revocation proceeding, he acknowledged violation of Rule

7, use of drugs, when he related, “I was upset at myself for going back to drugs, just

almost maybe four days after getting out of jail.” The only violation untouched by

the appellant was Rule 3, possession of a firearm. The probation violation warrant

related additional pending burglary and theft charges against the appellant which

occurred on March 6, 1997 in Giles County. The appellant was eventually arrested


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in Racine, Wisconsin, and transported back to Giles County. The record indicates

that the probation violation warrant was served on the appellant on May 12, 1997.



       On March 3, 1998, a probation violation hearing was held in the Circuit Court

of Giles County. With the exception of denying the new arrest charges in Giles

County, the appellant presented no defense to the alleged rule violations for which

he was charged. In mitigation, he related to the court:

       Pulaski is a very small town and there is a lot of temptation around. . . .
       That’s why eventually I got tired of it and I called my friend and we left
       . . . I was upset at myself for going back on drugs . . . I left here with
       the intent to start over and do maybe what I was supposed to do at
       least half way. . . .


       At the conclusion of the hearing, the trial court entered into the record

detailed findings of fact supporting revocation of the appellant’s probation.



                                       ANALYSIS



       The appellant does not dispute the fact that the proof was sufficient to

support revocation of his probationary status. Rather, on appeal, he argues (1)

violation of his Sixth Amendment right to a speedy trial and (2) various due process

violations. The State argues that these two enumerated issues were not raised by

the appellant at trial level and are presented for review for the first time on appeal.



       Generally, appellate courts review only questions presented for determination

in the lower court. Hester v. State, 450 S.W.2d 609, 611 (Tenn. Crim. App. 1969).

During the appellant’s opening statement at the revocation hearing, he alluded to a

probationer’s right to a “reasonably prompt hearing” and to a probationer’s due

process rights. No request for relief upon these generalized grounds was ever

presented and it is altogether unclear the context in which these statements were

made. Rule 47, Tenn. R. Crim. P., requires that a motion “shall state with

particularity the grounds upon which it is made and shall set forth the relief or order

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sought.” Because we find these issues are now being raised for the first time on

appeal, we find them to be waived. Tenn. R. App. P. 36(a). Notwithstanding

procedural default, we elect review of the appellant’s issues.



                                          A . SPEEDY T RIAL CLA IM


         The appellant asserts that his constitutional right to a speedy trial was denied

because of the excessive delay between the date of his arrest and the scheduled

probation hearing.1 In his brief, the appellant contends that the delay was “10.75"

months. The record, however, is silent as to when the appellant was returned to the

state of Tennessee following his arrest and incarceration in Wisconsin. Even

assuming for argument’s sake that the occasioned delay was “10.75" months, a

mere lapse of time, absent more, does not constitute a denial of the right to a

speedy trial. State v. Bishop, 493 S.W.2d 81, 84 (Tenn. 1973); State v. Ensley, 956

S.W.2d 502, 509 (Tenn. Crim. App. 1996), perm. to appeal denied, (Tenn. 1997). In

Bishop, 493 S.W.2d at 84, our supreme court adopted the Barker v. Wingo, 407

U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972), four part balancing test to determine

whether the right to a speedy trial has been abridged. If the length of the delay is

not presumptively prejudicial, the other balancing factors need not be considered.

Barker, 407 U.S. at 530, 92 S.Ct. at 2192. A delay of one year or longer “marks the

point at which courts deem the delay unreasonable enough to trigger the Barker

inquiry.” Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, n. 1




         1
          In Allen v. State , 505 S.W.2d 715, 719 (Tenn. 1974), our supreme court extended the
right to a speedy trial to probation revocation proceedings. Speaking for the court in Allen, Special
Justice Leech concluded that a probation revocation proceeding is a criminal prosecution. In so
holding, the court relied upon the Sixth Amendm ent provision, “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial . . .,” (emphasis in original), and Article 1,
§ 9 of the T ennes see C onstitution p rovision, “ [t]hat in all criminal prosecutions, the accu sed ha th
the right to . . . a sp eedy pub lic trial . . . .” (emph asis in origina l). Allen, 505 S.W .2d 717- 718. W e
note, however, that following the Allen decision , num erous fe deral cou rts have h eld that the S ixth
Amendment right to a speedy trial does not apply to “probation revocation proceedings, since they
are not ‘crim inal proce edings’” w ithin the m eaning o f the con stitutional gua ranty. See United
States v. Jackson, 590 F.2 d 121, 12 2-123 (5 th Cir.), cert. denied, 441 U.S. 912, 99 S.Ct. 2012
(1979) ( citation om itted); see also United States v. Tippens, 39 F.3d 88, 89 (5th Cir. 1994 ); United
States v. Taylor, 931 F.2 d 842, 84 8 (11th C ir. 1991), cert. denied, 502 U.S. 1102, 112 S.Ct. 1191
(1992);; United States v. Williams , 558 F.2 d 224 (5 th Cir. 197 7); United States v. Sackinger, 537
F. Supp . 1245, 12 48, n. 3 (W .D. N.Y. 19 82), aff’d , 704 F.2 d 29 (2d Cir. 1983 ).

                                                      4
(1992). Because we find the alleged delay was not presumptively prejudicial, we

conclude the appellant was not denied his right to a speedy trial.



                                    B . DUE PROCESS


       This state recognizes that a probationer has a liberty interest which is

protected by due process of law. State v. Wade, 863 S.W.2d 406, 408 (Tenn.

1993); State v. Stubblefield, 953 S.W.2d 223 (Tenn. Crim. App. 1997); Practy v.

State, 525 S.W.2d 677, 680 (Tenn. Crim. App. 1974), cert. denied, (Tenn. 1975).

Accordingly, the appellant contends that his due process rights were violated by the

State’s: (1) failure to provide the “guaranteed” preliminary hearing following his

arrest for revocation of probation; (2) failure to be “served a written notice of

violations;” (3) failure to be “given a disclosure of prepatory [sic] evidence prior to

the hearing;” and (4) failure to be provided with “a written decision stating facts as to

why revocation ensued.” See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756

(1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972).



       The State contends that, under our statutory scheme, the preliminary hearing

is not required. We agree. The appellant erroneously relies upon Gagnon, 411

U.S. 778, 93 S.Ct. 1756 and Morrissey, 408 U.S. 471, 92 S.Ct. 2593, for the

proposition that he is guaranteed a preliminary hearing. However, Tennessee’s

statutory scheme does not require a preliminary hearing in probation revocation

proceedings and fully complies with constitutional requirements. See Practy, 525

S.W.2d at 682 (“proceedings in this State for revocation . . . more than comply with

the mere minimal requirements stated in Morrissey and Gagnon”); see also Massey

v. State, 929 S.W.2d 399, 401 (Tenn. Crim. App. 1996).



       Next, the appellant contends that he was not served with a written notice of

the violations. A defendant on probation is entitled to a written notice of the

allegations that form the basis for the revocation proceeding. Gagnon, 411 U.S. at


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786, 93 S.Ct. at 1761-1762. As previously noted, the record establishes that the

appellant was served with the warrant including the affidavit containing all of the

alleged violations on May 12, 1997.



       Third, the appellant contends the State denied him due process by failing to

provide disclosure of evidence prior to the hearing. Specifically, he contends the

State failed to disclose “various exhibits of evidence” used at the hearing and “two

witnesses” that testified preventing him from preparing an adequate defense. The

record is void of any request by the appellant to examine any evidence, nor is there

evidence that this right was denied by the State. See State v. Robinson, 03C01-

9709-CR-00405 (Tenn. Crim. App. at Knoxville, June 3, 1998).



       With regard to the final alleged due process violation, the appellant contends

that he was not provided a written decision indicating the reasons his probation was

revoked. The trial court made oral findings of fact on the record at the conclusion of

the hearing summarizing the evidence and grounds for the appellant’s probation

revocation. This court has held that the trial court’s authentication of a transcript of

the hearing in which the trial court’s oral findings are included, meet this requirement

of due process. State v. Delp, 614 S.W.2d 395, 397 (Tenn. Crim. App. 1980); State

v. Crowe, 03C01-9606-CC-00225 (Tenn. Crim. App. at Knoxville, July 29, 1997).



       In sum, the appellant was given prior notice of the revocation hearing, notice

of the alleged violations, the right to cross-examine the two witnesses, call witnesses

in his defense, and testify on his own behalf. The requirements of due process were

satisfied.



       The judgment of the trial court is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



_________________________________
JAMES CURWOOD WITT, JR., Judge


_________________________________
JOHN EVERETT WILLIAMS, Judge




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