             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE               FILED
                                MAY 1997 SESSION
                                                                October 8, 1997

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                )      No. 03-C-01-9608-CR-00298
      APPELLEE,                 )
                                )      Knox County
v.                              )
                                )      Richard R. Baumgartner, Judge
DEBRA SUE BENSON,               )
                                )      (Revocation of Probation)
      APPELLANT.                )




FOR THE APPELLANT:                     FOR THE APPELLEE:

Paula R. Voss                          John Knox Walkup
Assistant Public Defender              Attorney General & Reporter
1209 Euclid Avenue                     500 Charlotte Avenue
Knoxville, TN 37921                    Nashville, TN 37243-0497
(Appeal Only)
                                       Michael J. Fahey, II
John Halstead                          Assistant Attorney General
Assistant Public Defender              450 James Robertson Parkway
1209 Euclid Avenue                     Nashville, TN 37243-0493
Knoxville, TN 37921
(Trial Only)                           Randall E. Nichols
                                       District Attorney General
OF COUNSEL:                            P. O. Box 1468
Mark E. Stephens                       Knoxville, TN 37901-1468
District Public Defender
1209 Euclid Avenue                     Marsha L. K. Selecman
Knoxville, TN 37921                    Assistant District Attorney General
                                       P. O. Box 1468
                                       Knoxville, TN 37901-1468




OPINION FILED: _______________________________


AFFIRMED


Joe B. Jones, Presiding Judge
                                       OPINION


       The appellant, Debra Sue Benson (defendant), appeals as of right from a judgment

of the trial court revoking her probation. The defendant did not contest the grounds

established by the State of Tennessee to support the revocation of her probation. In this

Court, the defendant contends she was suffering from a mental illness when the violations

of her probation occurred, and, as a result, she was not capable of complying with the

conditions of probation previously imposed by the trial court. After a thorough review of the

record, the briefs submitted by the parties, and the law governing the issue presented for

review, it is the opinion of this Court the judgment of the trial court should be affirmed.

       The State of Tennessee established at the revocation hearing that the defendant

violated the conditions of her probation in several ways. The violations included (a) moving

without leaving a forwarding address or notifying the probation officer who supervised her

probation; (b) failing to report to her probation officer after December 31, 1990; (c) making

it impossible for the supervising probation officer to visit the defendant’s residence or place

of employment; (d) failing to pay probation fees; (e) being unavailable for random drug

screens; (f) failing to maintain full-time employment; (g) being arrested and convicted of

two criminal offenses in Knox County; and (h) being arrested in North Carolina for two

attempts to commit larceny.

       The probation officer expressed his view regarding continued supervision of the

defendant if her probation was reinstated. He stated: “I think Miss Benson would be a very

high risk if returned to probation.”

       The defendant did not testify at the revocation hearing. She did not present any

witnesses. The defendant introduced into evidence medical records from the University

of Tennessee Memorial Hospital and Peninsula Hospital. The first notation regarding a

mental illness is contained in the University of Tennessee hospital records. On March 2,

1992, there is a notation that the defendant has a psychosis. She had already been

prescribed medication for her condition approximately three weeks prior to this visit. There

is nothing contained in the records to indicate the defendant was hospitalized at that time.

The records indicate the defendant had an appointment at a facility, but it is not clear what


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type of facility she was to contact because only initials are used in the records. There is

nothing contained in the records to establish she could not comply with the conditions of

her probation.

        There is nothing contained in the record regarding the defendant’s condition

between March 2, 1992 and November 21, 1995 when the defendant entered Peninsula

Hospital. She was released on November 30, 1995. The reason given for the defendant’s

release from the hospital was: “[Patient] discharged at approximately 1600 [hours] per

court decision. . . .” It appears the “court” -- the name of the court is not mentioned --

determined the defendant should not be committed for treatment on November 28, 1995.

The Peninsula records establish the defendant failed to take the medication prescribed for

her condition regularly, and this was described as a “problem.”

        Whether the probation of an accused should be revoked is a question which rests

within the sound discretion of the trial court. State v. Conner, 919 S.W.2d 48, 49 (Tenn.

Crim. App. 1995); State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); State

v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Thus, the standard of appellate

review in these cases is whether the trial court abused its discretion by revoking the

accused’s probation. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); Conner, 919

S.W.2d at 49-50; Leach, 914 S.W.2d at 106; State v. Smith, 909 S.W.2d 471, 473 (Tenn.

Crim. App. 1995). Before an appellate court may reverse the judgment of the trial court

in these cases, the appellate court must find the record is void of substantial evidence to

support the trial court’s findings of fact that the accused violated the conditions imposed

when placed on probation. Conner, 919 S.W.2d at 50.

        There is absolutely no evidence contained in the record which would permit the trial

court or this Court to conclude the defendant was suffering from a mental condition when

she committed most of the violations. The first recorded incident was on March 2, 1992,

when the defendant was examined and released from the University of Tennessee

Hospital. The violations occurred following December 31, 1990, the date she quit reporting

to her supervising probation officer. This was over two years prior to the March 2, 1992,

date.

        The defendant was released from Peninsula on November 30, 1995. This decision



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was made after a court found the defendant should not be kept at Peninsula for evaluation

and/or treatment. Again, there is absolutely no evidence contained in the record which

would permit the trial court or this Court to conclude that the defendant was unable to

comply with the terms of her probation due to a mental illness.

      This Court is of the opinion the trial court did not abuse its discretion in revoking the

defendant’s probation. There were ample violations of the conditions of her probation.

Most of the grounds occurred before there was any indication the defendant was suffering

from a form of mental illness.




                                   ____________________________________________
                                        JOE B. JONES, PRESIDING JUDGE




CONCUR:



______________________________________
     JOSEPH M. TIPTON, JUDGE



______________________________________
      CURWOOD WITT, JUDGE




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