             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                           OCTOBER 1999 SESSION         FILED
                                                        December 20, 1999

STATE OF TENNESSEE,                )                    Cecil Crowson, Jr.
                                                      Appellate Court Clerk
                                   )C.C.A. NO. W1999-01906-CCA-R3-CD
             Appellee,             )
                                   )     MADISON COUNTY
VS.                                )
                                   )     HON. FRANKLIN MURCHISON,
LEE BELL, JR.,                     )     JUDGE
                                   )
             Appellant.            )     (Revocation of Community
                                         Corrections)



FOR THE APPELLANT:                       FOR THE APPELLEE:


GEORGE GOOGE                             PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter

VANESSA D. KING                          PATRICIA C. KUSSMANN
Asst. Public Defender                    Asst. Attorney General
227 West Baltimore St.                   Cordell Hull Bldg., 2nd Fl.
Jackson, TN 38301                        425 Fifth Ave., North
                                         Nashville, TN 37243-0493
C. MICHAEL ROBBINS
46 North Third St.                       JERRY WOODALL
Suite 719                                District Attorney General
Memphis, TN 38103
       (On Appeal)                       DONALD H. ALLEN
                                         Asst. District Attorney General
                                         Lowell Thomas State Office Bldg.
                                         Jackson, TN 38301



OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION


                     The defendant pled guilty to three counts of theft of property under

five hundred dollars ($500), two counts of forgery, two counts of criminal impersonation,
one count of aggravated criminal trespass, and was found guilty by a jury of one count

of theft of property over one thousand dollars ($1000). The defendant received an

effective sentence of eight years with eleven months, twenty-nine days to be served in
confinement and seven years and one day to be served in a community corrections

program. A petition was subsequently filed requesting that the trial court revoke the

defendant’s alternative sentence. After an evidentiary hearing, the trial court removed

the defendant from the community corrections program and ordered that the defendant

serve the remainder of his sentence in confinement. The defendant now appeals the trial

court’s revocation of his sentence in the community corrections program. After a review

of the record and applicable law, we find no merit to the defendant’s contentions and thus

affirm the judgment of the court below.



              The defendant first contends that the trial court’s order revoking his
community corrections sentence is void “as it is grounded on an illegal and void arrest

warrant.” Specifically, the defendant contends that the information provided by the affiant
which was used to justify the defendant’s arrest was unsworn. As such, the defendant
argues, the warrant is void ab initio and any proceedings based on the warrant are void

as well. This issue was not litigated at the trial level. In addition, the arrest warrant was
signed by the defendant’s community corrections officer under the section titled “Affidavit”
and the trial judge issued the warrant thereon. Any issue regarding a defect in the arrest

warrant has been waived and cannot be considered on appeal. See State v. Lunati, 665

S.W.2d 739, 749 (Tenn. Crim. App. 1983).



              The defendant next contends that the trial court abused its discretion in

revoking his community corrections sentence and ordering that he serve the remainder

in confinement. The trial court has the discretion to revoke a community corrections


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sentence upon a finding that the defendant has violated the conditions of his behavioral

contract. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). However, before a

sentence may be revoked, the record must contain sufficient evidence to permit the trial
court to make an intelligent and conscientious decision. Id. This Court will not disturb

the trial court’s decision absent a finding that the trial court abused its discretion. Id. In

order to find that the trial court abused its discretion, this Court must find that the record
contains no substantial evidence to support the trial court’s conclusion that the defendant

violated the terms of the community corrections program. Id.



              At the revocation hearing, the defendant’s community corrections officer,

Clarence Fitzhugh, testified that although the defendant did sign up for the program and

signed the behavioral contract, the defendant failed to report to anyone in the program
as is required. In addition, the defendant failed to pay supervision fees, court costs or

fines. In his defense, the defendant testified that he tried to report to the probation office

but was told he was reporting to the wrong office. When he tried to report to the office

to which he was directed, he was again instructed to report somewhere else. The

defendant further testified that he did not pay his supervision fees and court costs
because he was paying child support instead. In light of the foregoing, the record amply

supports the trial court’s findings that the violations occurred.



       Nevertheless, the defendant contends that he failed to follow the guidelines of the

community corrections program due to a mental deficiency which was noted by the trial

judge. At the revocation hearing, the trial judge stated that,
              Although I would agree, [the defendant] seems to have a hard
              time understanding things . . . [the defendant] seems to have a
              difficult time getting things done and getting things done right. He
              really does, but I think we’ve gone about as far as we can with
              him. He’s not ever going to be able to successfully be on
              Community Corrections or probation. I’m going to send him to
              TDOC to serve his sentence. . . . He’s violated . . . his
              Community Corrections program, in a substantial way.

We first note that, other than the trial court’s statements, there is absolutely no proof in
the record supporting the defendant’s allegation that he is mentally deficient to such an

extent that he was unable to comply with the terms of his community corrections


                                              3
sentence. In any event, in the context of a probation violation, the majority view is that

a mental defect may only be considered as mitigating evidence. State v. Jeffrey D.

Hunter, No. 01C01-9608-CC-00334, Williamson County (Tenn. Crim. App. filed October
30, 1997, at Nashville).       As such, the trial court met its obligation by specifically

considering the defendant’s mental condition in mitigation of his failure to follow the

community corrections guidelines. However, the trial court still concluded that the
defendant’s community corrections sentence should be revoked. The record fully

supports this decision.



              The defendant further contends that the trial court erred in revoking his

community corrections sentence on the basis of his failure to pay court costs and fees.

The defendant argues that his child support obligations and other expenses prevented
him from making the required payments. The defendant argues that, as a probationary

sentence may not be revoked on the naked proof of failure to pay required fees and there

was no evidence that the defendant willfully refused to make the payments, the trial court

erred in revoking his community corrections sentence. However, the trial court did not

revoke the defendant’s sentence solely on the basis of his failure to make the required
payments. The trial court emphasized the defendant’s failure to report to the program

when making its decision to revoke the defendant’s sentence. The defendant’s failure

to report is sufficient grounds upon which the trial court could base its decision to revoke
the defendant’s sentence. See T.C.A. § 40-35-311; Harkins, 811 S.W.2d at 82. As such,

this issue is without merit.



              After a review of the record before us, we conclude that the record contains

sufficient proof to enable the trial court to make an intelligent and conscientious decision.

The trial court did not abuse its discretion in revoking the defendant’s community

corrections sentence. Accordingly, the judgment of the trial court is affirmed.


                                                   ______________________________
                                                   JOHN H. PEAY, Judge




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CONCUR:



______________________________
NORMA M. OGLE, Judge



______________________________
ALAN E. GLENN, Judge




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