        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                            MARCH SESSION , 1999          May 14, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9712-CC-00594
                               )
      Appellee,                )
                               )
                               )    DICKSON COUNTY
VS.                            )
                               )    HON. ALLEN W. WALLACE,
RODERICK S. WILLIAMS,          )    JUDGE
                               )
      Appe llant.              )    (Probation Revocation)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CIRCUIT COURT OF DICKSON COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

JOSEPH L. HORNICK                   JOHN KNOX WALKUP
98 Church Street, Suite 1           Attorney General and Reporter
Dickson, TN 37055
                                    CLINTON J. MORGAN
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    DAN ALSOBROOKS
                                    District Attorney General

                                    ROBERT WILSON
                                    Assistant District Attorney General
                                    P.O. Box 580
                                    Charlotte, TN 37036



OPINION FILED ________________________

REVERSED AND REMANDED

DAVID H. WELLES, JUDGE
                                 OPINION

      The Defendant, Roderick S. Williams, appeals as of right from the trial

court’s order revoking his probation and remanding him to the Tennessee

Department of Correction to serve his eight-year sentence in confinement for

Class B theft of property. The Defendant contends that the trial court erred by

revoking his prob ation w hen th e cou rt (1) ba sed its determ ination solely o n his

failure to pay restitution, and (2) failed to find o n the re cord th at he w illfully

refused to make payments and that no suitable alternative to revocation existed.

We agree, and we reverse the revocation of probatio n and re mand this case to

the trial court for reinstatement of the Defendant’s probation.



      On Septem ber 21, 1 995, the Defendant pleaded guilty to and was

convicted of Class B felony theft. The agreed sentence was eight years in the

Department of Corre ction, to be se rved in com mun ity corre ctions “with C ourt’s

permission to be transferred to California for Community Corrections.” The

judgment also stated that there was to be a hearing to determine the amount of

restitution. This judgment was entered on September 22, 1995. On September

29, 1995, the cou rt entered an “agreed order of restitution.” This order ap pears

to incorporate an agreement of the parties that restitution be set at $150,000.

The order did not provide for a schedule of periodic payments, nor did the order

reflect the time frame within which restitution was to be made. A community

corrections order was also entered on Se ptem ber 29 , 1995 . This order contained

a provision that the D efendant wo uld “pay all court costs, fines and restitution as

outlined in the behavioral contract.”     The order also granted the Defendant



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permission to be “transferred to C alifornia to live and be supervised on

comm unity corrections.” On the same day, a “community corrections transfer

order” was en tered wh ich transfe rred the D efendant to the “Tennessee

Departm ent of Correction s probation.”



       On March 3, 1997, a probation violation warrant was issued alleging that

the “Defe ndan t was to ld to m ake c ourt an d restitu tion pa ymen ts mo nthly to the

Court. The last payment was paid on Novem ber 14, 1 996 to Circuit Court.” On

November 25, 1997, the trial court conducted a hearing on the probation

revocation warrant, found that the Defendant had violated the terms of his

probation, and ordered his eight-year sentence served in the Tennessee

Department of Correction. It is from this order that the Defendant appeals.



       As a preliminary issue, we address and reject the Defendant’s argument

that the trial court erred by allowing a transfer of his supervision from Com munity

Corrections to Department of Correction probation. We find that the issue is

waived for failure to app eal the transfer at the time it occurred, in 1995.

Furthermore, it appears from the record before us that the transfer was

effectuated to facilitate the Defendant’s move from Tennessee to California,

which we ass ume th e Defe ndant re queste d. He m ay not now c hallenge the

transfer’s va lidity.



       With respect to the propriety of the Defendant’s revocation, both the

granting and denial of probation rest in the sound dis cretion of the trial judge.

State v. Mitch ell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Moreover, the

trial judge has the discretionary authority to revoke probation if a preponderance

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of the evidence establishes that a defendant violated the conditions of probation.

The trial judge m ust, how ever, adduce sufficient evidence during the probation

revocation hearin g to pe rmit an intelligen t decision . Id. The determination made

by the trial court, if made with conscientio us judgm ent, is given the weigh t of a

jury verdict and en titled to affirma nce. Stam ps v. State , 614 S.W.2d 71, 73

(Tenn. C rim. App. 198 0).



      When a probation revocation is challenged, this Court has a limited scope

of review. The judgment of the trial court revoking probation will not be disturbed

on appeal unless it appears that the trial court acted arbitrarily or otherwise

abused its discretion . State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim.

App. 1981). “For this Court to find an abuse of discretion by the trial court in a

probation revocation case, a defendant must demonstrate ‘that the record

contains no substantial evidence to support the conclusion of the trial judge that

a violation of the condition s of prob ation has occurre d.’” State v. W all, 909

S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting State v. Delp , 614 S.W.2d 395,

398 (Tenn . Crim. A pp. 198 0)); State v. Gabel, 914 S.W.2d 562, 564 (Tenn. Crim.

App. 19 95); see also State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (dicta).



      When the alleged vio lation of pro bation is fa ilure to pay restitution or court

costs, the cour t must inq uire into the reas ons for su ch non paym ent. Bearden v.

Georgia, 461 U .S. 660 , 672 (1 983). T o issue an ord er of rev ocatio n, the tria l

court must affirmatively find on the record (1) that a defendant’s failure to pay was

willful; and (2) that alternatives to imprisonment were inadequate to meet the

State ’s interests in punishing the offender, deterring others from similar conduct

and insuring the paym ent of restitu tion to victims . State v. Dye, 715 S.W.2d 36,

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41 (Tenn. 1986). “Pursuant to Bearden, ‘[u]nless such determinations are made

. . . , funda men tal fairne ss req uires th at the [d efend ant] rem ain on proba tion.’”

Id. (quoting Bearden, 461 U .S. at 67 4) (bot h altera tions in Dye). This h olding is

subject to a caveat: If a defen dant was “‘som ehow resp onsible’” or “‘at fault in

failing to pay,’” then application of Bearden is improp er.               Id. at 40 (quoting

Bearden, 461 U.S . at 665, 66 8).



       At the probation revocation hearing, the State elicited testimony from a

probation officer that she was the Defendant’s probation officer for “one day” prior

to the tran sfer of h is supervis ion to Ca lifornia. She testified that she talked to the

Defendant about court costs and restitution payme nts, and she testified that

these payme nts were supposed to be paid monthly. She testified that she did not

know how much the restitution order included “because when [the Defendant] got

put on probation that day it was $316.00 and [the judg e and attorne ys] were

going to determine the restitution.” The Defendant testified that he understood

he was supposed to pay $100 per month.



       In this case, the State produced some evidence showing that a condition

of the De fenda nt’s pro bation requir ed him to pay $100 per month in restitution

and court costs.1 The State further presented records from the court clerk’s office

demonstrating that the Defendant failed to make a payment between November

14, 1996 and March 3, 1997.2 This was the solitary ground supporting a violation


       1
         The total sum of restitution and court costs the Defendant is required to pay to the
court equals $152,537.
       2
         The warrant charging the Defendant with a probation violation was issued on March
3, 1996. Following issuance of the warrant, but before the Defendant was arrested, the
Defendant paid an additional $150. Finally, after his arrest but prior to his revocation hearing,
the Defendant paid an additional $1050.

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of the Defendant’s probation. In response, the Defendant asserted that he had

been unemployed for a period of time and that his mother had been diagnosed

with cancer, preventing him from making regular p ayme nts beca use of the costs

of her trea tment.



      Our review of the revoca tion hearing be low offers us little insight into the

trial court’s determ ination on the issue of willfulnes s. The tria l court failed to

make specific, formal findings as to whether the Defendant willfully refused to pay

and as to th e suita bility of alte rnative s to revo cation. There fore, acco rding to

Bearden and Dye, fundamental fairness requires reinstatement of the

Defen dant’s pro bation.



      Moreover, we conclude that even if the trial court had made a specific

finding of willfulness , such a finding would not have been supported by any

substantial evidence. The proof revealed that the Defendant was required to pay

a total of $152,537 as a condition o f his eight-year proba tion. Further, the

Defendant had been advised by a probation officer to make a $100 payment per

month.    Had the Defendant paid $100 per month for eight years, his total

repayment would have equaled only $9600. Rather than pay the scheduled

amount, the Defendant sent payments of $150 each. The court clerk’s records

show that he mad e these $15 0 paym ents in May, July, August, and November

of 1996. In September of 1996, the Defendant made two $150 payments; and

in Octob er, he m ade a p ayme nt of $115 5. The Defendant made no payment in

December of 1996 or Ja nuary of 1997 , but the clerk credited h im with a payment

on March 3, 1997. Regarding this March payment, the Defendant produced




                                          -6-
return-receipt postage slips marked February 18 and February 28 to show that

he had made this paym ent (cred ited Marc h 3) in Fe bruary.



       This proof simply does not support the State’s argument that the Defendant

failed to pay for seven to nine months. Furthermore, the proof would n ot support

a finding of willful failure to pay.    Neither this Court nor the trial court may

conside r proof su cceed ing the da te a probation violation warrant w as issue d to

determine whether a violation o ccurred . State v. Sacra, No. 88-278-III, 1989 WL

71037, *2 (Tenn. Crim. App., Nashville, June 29, 1989). In order to find that the

Defendant failed to pay for seven to nine mon ths, the trial cou rt would nece ssarily

have considered the month s following issuance of the Defendant’s violation

warra nt. Th is would h ave con stituted an abuse of discretion . See Sacra, 1989

W L 71037, at *2 (“[T]he trial court’s reliance upon facts which succeeded the

issuance of the probation revocation warrant is a patent and arbitrary abuse of

discretion .”).



       The proof prior to March 3, 1997—the violation warrant issuance

date—shows that the Defendant failed to make December 1996 and January

1997 p ayme nts towa rd his cou rt costs and res titution. In addition, between the

dates of May 1996 and March 1997, the Defendant paid a total of $2205. Had

the Defendant made the scheduled $100 payments toward his debt for the same

time p eriod, h e wou ld have paid a total of $1000. The Defendant clearly made

a good fa ith effort to ho nor his de bt; but, as he testified at his revocation hearing,

he was unable to pay for various reasons including unemployment and fam ily

medic al hardsh ip.




                                          -7-
      At the conclusion of the proof at the probation revocation hearing, the

assistant district attorney stated, “[W ]ell, your honor, obviou sly it was a mistake

to enter into the plea w here he was go ing to pay $150,000.00. So you can just

go on and violate him and be done with it because o therwise we’ll be ba ck here

every six months.”      While the trial court rejected the argument that the

Defe ndan t’s probation should be violated simply because the restitution order

was unrealistic, it is apparent from the reco rd that the tria l judge agree d that it

was unrealistic to expect the Defendant to be able to make restitution in the

amount of $15 0,000 . It appe ars to th is Cou rt that this shou ld have been obvious

at the time the plea was entered.        Nevertheless, the State agreed that the

Defe ndan t’s eight-yea r senten ce wou ld be serv ed on p robation subject to

payment of restitution in the amount of $150,000. No payment schedule was

included in any cou rt order. The Defendant’s probation officer was unaware of

the total amount of restitution ordered in this case. It is apparent that no one

expected the Defendant to be able to pay the $150,000 in lump sum. T he

Defendant and h is prob ation o fficer ap paren tly agree d that h e cou ld pay $100 or

$150 p er mon th.



      It may be that to reinstate the Defendant’s probation after he ha s bee n in

the penitentiary for ove r one a nd on e-half y ears w ill only increase the confusion

in his case. Nevertheless, we do not believe that this record supports a finding

that the Defendant willfully failed or refused to comply with court-ordered

restitution. For thes e reaso ns, we revers e the re vocatio n of the Defe ndan t’s

probation. We remand this case to the Crimina l Court for D ickson C ounty to

enter an order reinstating his probation and for such other proceedings as may

be appropriate.

                                         -8-
                         ____________________________________
                         DAVID H. WELLES, JUDGE


CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
JOHN EVERETT WILLIAMS, JUDGE




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