         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs April 22, 2003

             STATE OF TENNESSEE v. BARRY LEE ARMISTEAD

                Direct Appeal from the Criminal Court for Davidson County
                          No. 99-D-2724    Seth Norman, Judge



                  No. M2002-01877-CCA-R3-CD - Filed September 11, 2003


Barry L. Armistead appeals from the Davidson County Criminal Court’s revocation of his
probationary sentences. He claims that the lower court erred in revoking probation because the state
failed to prove a violation by a preponderance of the evidence. Because we disagree, we affirm the
lower court’s judgment.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR ., J., delivered the opinion of the court, in which JOE G. RILEY and
NORMA MCGEE OGLE , JJ., joined.

William A. Lane, Murfreesboro, Tennessee, for the Appellant, Barry Lee Armistead.

Paul G. Summers, Attorney General & Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Sarah Davis, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                            OPINION

              Upon his guilty pleas, the defendant was convicted of two counts of aggravated
assault. Pursuant to the plea agreement, he was sentenced to two terms of four years each, to be
served consecutively to each other and consecutively to the sentence for a prior conviction in Putnam
County. The sentences were to be served on probation.

            Before the commencement of the defendant’s Davidson County sentences, his
Davidson County probation officer procured a violation warrant, in which it was alleged that the
defendant violated probation by violating the law, failing to report to his probation officer, and
failing to pay the required fees.1

                The transcript of the defendant’s guilty plea hearing is contained in the appellate
record. It reflects an exchange between defense counsel and the court concerning whether the
defendant could serve his Davidson County sentences through the probation office in Putnam
County, which is the defendant’s home. When defense counsel inquired whether the defendant
should report to Davidson County probation authorities before the defendant’s cases were transferred
to Putnam County, the court instructed that the defendant should see “Mr. Sears” before leaving
court that day. The court advised, “Mr. Sears will talk to him about it and tell him what to do.”

                At the revocation hearing, the state presented the testimony of James Foster, the
defendant’s probation officer. Foster testified that the defendant had never reported to him. Foster
filed the violation warrant after learning that the defendant had been arrested on theft charges in
Wilson County. Foster claimed that he pursued revocation because the defendant had violated the
terms of probation by incurring a new arrest, failing to report the new arrest, failing to provide proof
of employment, changing his residence without notifying Foster, failing to report, and failing to stay
away from the victim.2

               The defendant took the stand to oppose revocation. He testified that after his
Davidson County plea hearing, he was taken into a hallway where he filled out paperwork with a
probation officer who told him that his paperwork would be faxed to Brenda Reed, the defendant’s
Putnam County probation officer. The defendant’s understanding was that he would be supervised
by Putnam County probation officials for the Davidson County sentences. He was unaware that he
had been assigned a Davidson County probation officer. The defendant testified that the alleged
Wilson County theft offense occurred in 1997 or 1998, which was prior to the Davidson County
offenses. The Wilson County theft charge was still unresolved at the time he entered his guilty pleas
in Davidson County in 2000. The defendant conceded that after the Davidson County sentences
were imposed, he “jumped bail” in Wilson County in 2001 and was arrested. The defendant likewise
conceded that he was presently serving a Putnam County sentence in the Department of Correction
due to a “technical violation” of probation.

               The standard of review upon appeal of an order revoking probation is the abuse of
discretion standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). For an abuse of discretion


         1
           Apparently, the original violation warrant contained a clerical error in that it alleged that the defendant violated
probation on a date earlier than the date upon which the defendant’s sentences were imposed. The record reflects that
the defendant made a timely objection to the irregularity, upon which the court dismissed the warrant and indicated its
willingness to issue a corrected warrant upon the state’s preparation of same. The affidavit that is in the record contains
the clerical error mentioned above, but the warrant itself appears in order. We p resume by the defendant’s silence at the
hearing below and on appeal that he has no quibble with the warrant in its present form and that he does not contest that
he received adequate notice of the factual basis upon which the state sought revocation.

         2
             Only some of these grounds are actually alleged in the violation warrant that is befo re us.

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to occur, the reviewing court must find that the record contains no substantial evidence to support
the conclusion of the trial judge that a violation of the terms of probation has occurred. Id. at 82;
State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The trial court is required only to find
that the violation of probation occurred by a preponderance of the evidence. Tenn. Code Ann. §
40-35-311(e) (Supp. 2002). Upon finding a violation, the trial court is vested with the statutory
authority to "revoke probation and suspension of sentence and cause the defendant to commence the
execution of the judgment as originally entered." Id. Furthermore, when probation is revoked, "the
original judgment so rendered by the trial judge shall be in full force and effect from the date of the
revocation of such suspension." Id. § 40-35-310 (1997). The trial judge retains the discretionary
authority to order the defendant (1) to serve his sentence in incarceration; (2) to serve the
probationary term, beginning anew; or (3) to serve a probationary period that is extended for up to
an additional two years. State v. Hunter, 1 S.W.3d 643 (Tenn. 1999). The determination of the
proper consequence embodies a separate exercise of discretion from the initial finding that a
violation has occurred. See id. at 647; State v. Duke, 902 S.W.2d 424, 427 (Tenn. 1995); State v.
Ricio L. Conner, No. 02C01-9807-CR-00201 (Tenn. Crim. App., Jackson, Oct. 31, 1999).

                In this case, the defendant challenges only the propriety of the revocation, not the
consequence imposed as a result. Therefore, we concern ourselves solely with the adequacy of the
basis for the revocation. In that regard, the trial court did not make findings about its basis for the
revocation. Thus, we will consider whether the state demonstrated by a preponderance of the
evidence that the defendant violated probation in any of the three ways alleged in the revocation
warrant – violating the law, failing to report to his probation officer, and failing to pay the required
fees.

                  We are compelled by the defendant’s admission that he “jumped bail” in Wilson
County and was arrested for this reason. Although the factual underpinnings of this misdeed are
noticably absent from the record, we do not believe it is necessary for us to know the precise nature
of the offense where the defendant admits wrongdoing. Failure to appear, or “bail jumping” as it is
commonly called, is a criminal offense. See Tenn. Code Ann. § 39-16-609 (Supp. 2002). The
defendant did not make any claim that the arrest was unwarranted based upon the conduct preceding
it, and there is no indication in the record of any mistake in this regard. We believe that the record,
as it sits before us, supports a finding by a preponderance of the evidence that the defendant violated
the law, which was in contravention of his Davidson County probationary terms.

               That said, we are not convinced that the record supports by a preponderance of the
evidence either that the defendant failed to report to his probation officer or that he failed to pay the
required fees. With respect to the failure to report, the state and the defense presented conflicting
evidence. The defendant offered a plausible explanation for not reporting to Davidson County
Probation Officer James Foster, and the state did not demonstrate that the defendant’s explanation
was unreasonable. The state did not present evidence via “Mr. Sears,” the Davidson County
probation officer with whom the court instructed the defendant to meet before leaving court on the
day of his sentencing. Moreover, the lower court failed to make any findings regarding the



                                                  -3-
comparative merits of the credibility of Mr. Foster and the defendant relative to their conflicting
testimony about the matter.

                With respect to the failure to pay required fees, the state established that the defendant
had done nothing to complete the requirements of his Davidson County probationary sentences, but
it did not establish that he was required to begin paying fees before actual commencement of the
sentences.3 The record will not support a finding that the defendant violated probation by failing to
pay fees.

               Based upon the defendant’s violation of the law by “jumping bail,” we affirm the
lower court’s revocation of his probationary sentences.




                                                           ___________________________________
                                                           JAMES CURWOOD WITT, JR., JUDGE




        3
         As stated previously, the sentences were imposed consecutively to a Putnam County sentence, which the
defendant had not completed serving.

                                                     -4-
