        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs February 29, 2012

                  STATE OF TENNESSEE v. JOSHUA SHELL

              Direct Appeal from the Criminal Court for Union County
                       No. 3548-C    E. Shayne Sexton, Judge




                  No. E2011-01599-CCA-R3-CD - Filed July 25, 2012


Defendant, Joshua Shell, appeals from the trial court’s order which revoked Defendant’s
probation and ordered him to serve by incarceration his effective sentence of four years for
one count of burglary, three counts of vehicle burglary, and four counts of theft. The State
concedes error in the trial court’s proceedings and admits the case must be remanded for a
probation violation hearing. We agree and reverse the judgment of the trial court and remand
for a probation violation hearing.

                     Tenn. R. App. P. 3 Appeal as of Right;
              Judgment of the Criminal Court Reversed and Remanded

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J ERRY L. S MITH and
R OGER A. P AGE, JJ., joined.

Bryce W. McKenzie, Sevierville, Tennessee, for appellant, Joshua Shell.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William Paul Phillips, District Attorney General; and Tracy Jenkins, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       A probation violation warrant was filed against Defendant, and it alleged that he had
violated his probation by absconding, failing to report to his probation officer, failing to
submit to random drug screens, being in arrearage on monthly probation supervision fees,
and by failing to pay costs, fines, and restitution as ordered by the court. Defendant was
arrested pursuant to the warrant approximately fourteen months after it was filed. Fifteen
days later Defendant appeared, without counsel, before the trial court.       The entire
proceedings of that court appearance are as follows:

       [Assistant District Attorney]:   3548, State v. Joshua Shell.

       THE COURT:                       The violation states that you absconded
                                        from probation supervision; is that
                                        correct?

       DEFENDANT:                       Yes, sir.

       THE COURT:                       How long was he out?

       [PROBATION OFFICER]:             He has not reported since 8-26 - -
                                        excuse me, that’s incorrect. He’s not
                                        reported since February 23 rd , 2010.

       THE COURT:                       Year - - going on a year and a half.
                                        What is the history of supervision?

       [PROBATION OFFICER]:             This is actually Mr. Shell’s, I believe,
                                        third violation of probation. He also
                                        has a new conviction in Knox County.
                                        He was charged with burglary, it was
                                        pled down to theft under 500. He’s
                                        received misdemeanor probation which
                                        currently has a pending violation on it.

                                        The other two violations, I believe one -
                                        - well, I know for sure was dismissed.
                                        I believe the other, he was ordered to
                                        serve some time in jail and then was
                                        ultimately put back on probation.

       THE COURT:                       So the first one was dismissed. In other
                                        words, we didn’t get a disposition?

       [PROBATION OFFICER]:             Correct.




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        DEFENDANT:                         I thought both of them was [sic]
                                           dismissed.

        THE COURT:                         Well, I mean - -

        [PROBATION OFFICER]:               I believe the first one there was some
                                           problem. I had transferred Mr. Shell to
                                           Knox County, and his probation officer
                                           at the time was not able to give me - -
                                           had not been in contact with me and
                                           was not able to give - - he was not here
                                           in Court was not able to give me an
                                           update on how he had been doing, so
                                           ultimately, that violation was dismissed
                                           because the probation officer failed to
                                           provide any proof.

        THE COURT:                         Well, at any rate, we’ve got new
                                           charges, we have new convictions, we
                                           have a year and a half of absconding.
                                           This is a total failure of probation. This
                                           Court’s gonna remand. You’ll be given
                                           credit for whatever time that you’ve
                                           served on this charge and sentence, but
                                           the Parole Board will decide when
                                           you’re released.

        [PROBATION OFFICER]:               Thank you, your Honor.

        THE COURT:                         All right.

        The witness was not sworn, and the Defendant was not allowed to cross-examine her.
In its brief, the State gives the following statement with which we totally agree:

               The defendant in this case was denied his right to due process at the
        probation revocation hearing. Although the defendant answered “Yes, sir,”
        when the court asked him whether the violation stated he had absconded
        from supervision, the defendant’s response was not an unequivocal
        statement that he had actually absconded. (III, 5.) The defendant appeared
        to have been agreeing with the court that the violation warrant alleged he

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        had absconded. For that reason, the defendant was not admitting that he
        had violated his probation. Because the defendant was not afforded the
        opportunity to cross-examine the probation officer, and he was not allowed
        to call any witnesses to testify on his behalf, the defendant was denied his
        right to due process his probation revocation hearing. (III, 5-6).

       In Practy v. State, 525 S.W.2d 677 (Tenn. 1974), our supreme court stated, “[t]his
State’s procedure for revocation of sentence suspension and probation is an orderly one
affording a probationer full protection of his constitutional right to due process.” Id. at 682.
Tennessee Code Annotated section 40-35-311(b) provides in part that a defendant at a
probation violation hearing “is entitled to be represented by counsel and has the right to
introduce testimony in the defendant’s behalf.” Because a defendant’s conditional freedom
from incarceration is at risk during a probation violation hearing, a defendant must be
afforded due process in the revocation proceeding. State v. Wade, 863 S.W.2d 406, 408
(Tenn. 1993).

      Defendant is entitled to relief in this appeal. The judgment must be reversed and the
case must be remanded to the trial court for a probation violation hearing.

                                       CONCLUSION

       The trial court’s judgment is reversed and the case is remanded the trial court for a
hearing not inconsistent with this opinion.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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