           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE             FILED
                         JANUARY SESSION, 1997
                                                      September 30, 1997

                                                    Cecil W. Crowson
STATE OF TENNESSEE,          )    C.C.A. NO. 01C01-9604-CC-00134
                                                  Appellate Court Clerk
                             )
      Appellee,              )
                             )
                             )    RUTHERFORD COUNTY
VS.                          )
                             )    HON. JAMES K. CLAYTON, JR.
RICHARD MCADAMS,             )    JUDGE
                             )
      Appellant.             )    (Direct Appeal)




FOR THE APPELLANT:                FOR THE APPELLEE:

GUY R. DOTSON, JR.                JOHN KNOX WALKUP
102 South Maple Street            Attorney General and Reporter
Murfreesboro, TN 37130
                                  LISA A. NAYLOR
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  BILL WHITESELL
                                  District Attorney General

                                  JOHN W. PRICE, III
                                  Assistant District Attorney
                                  303 Rutherford County Judicial Bldg.
                                  Murfreesboro, TN 37130



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       Appellant Richard McAdams entered a plea of guilty in the Rutherford County

Circuit Court to one count of possession of marijuana for resale. As a Range I standard

offender, the Appellant received a sentence of one year and six months of incarceration

with the Tennessee Department of Correction, all of which was suspended with the

exception of 35 days to be served in the Rutherford County Workhouse. Appellant also

received a fine of $2,000. While in the workhouse Appellant was placed on work

release status. On April 18, 1995, a probation revocation warrant issued for Appellant.

Appellant allegedly violated workhouse rules in that he endeavored to bring contraband

into the workhouse upon returning to that facility from work. Following a probation

revocation hearing, Appellant was removed from work release and ordered to serve 45

days of straight incarceration at the Rutherford County Jail beginning January 8, 1996,

and to serve the remainder of his sentence on supervised probation. In this direct

appeal, Appellant contends that there was insufficient evidence to support the trial

court's ruling revoking Appellant's probation.



       After a review of the record, we affirm the judgment of the trial court.



                            I. FACTUAL BACKGROUND

       The proof shows that on March 4, 1994 officers of the LaVergne Police

Department arrested Appellant for possession of marijuana for resale. During a search

of Appellant's vehicle, the police recovered a plastic bottle containing Xanax and a set

of triple beam scales.

       On September 6, 1994, a Rutherford County Grand Jury indicted Appellant for

possession of a Schedule VI controlled substance (marijuana) with intent to sell or

deliver in violation of Tennessee Code Annotated Section 39-17-417. Appellant was

also indicted for possession of a Schedule IV controlled substance in violation of


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Tennessee Code Annotated Section 39-17-417. Finally, Appellant was indicted for

possession of drug paraphernalia in violation of Tennessee Code Annotated 49-17-425.

On February 28, 1995, Appellant pleaded guilty to the reduced charge of possession

of a Schedule VI controlled substance with intent to sell or deliver. The second and

third counts of the indictment were dismissed. As part of a plea agreement dated

February 28, 1995, Appellant received a sentence of 35 days in the Rutherford County

Workhouse and a suspended sentence of one year and six months. Appellant was

further ordered to pay a fine of $2,000. Following a hearing on Appellant’s alleged

violation of workhouse rules, the Rutherford County Circuit Court revoked Appellant's

suspended sentence and ordered Appellant to serve 45 days in the county workhouse

and to serve the remainder of the sentence on supervised probation.1



       II. REVOCATION OF PROBATION: SUFFICIENCY OF THE EVIDENCE



        Tennessee Code Annotated Section 40-35-310 authorizes the trial judge to

revoke a defendant's suspended sentence whenever that judge determines that the

defendant has violated the conditions of his probation. Evidence of a probation

violation need not be demonstrated beyond a reasonable doubt. Rather, it is sufficient

to prove the existence of a violation by a preponderance of the evidence. Tenn. Code

Ann. § 40-35-311(d) (1990); State v. Wall, 909 S.W.2d 8, 9 (Tenn. Crim. App. 1994).

Moreover, all that the evidence need show is that the trial judge acted conscientiously,

rather than arbitrarily, in determining whether or not to revoke the defendant's

probation. Wall, 909 S.W.2d at 10; Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim.



   1
     The original order issued by the Rutherford County Circuit Court filed on February 28, 1995
states that App ellant is sente nce d to serve 35 days in the Ruthe rford County W ork hou se.
How ever, the court iss ued an am ended order dated March 31, 1995 which sta tes that Ap pellant is
sen tenc ed to 40 days in the co unty work hou se. In the brief for the Sta te of T enn ess ee, the Sta te
refers to the March 31 order sentencing Appellant to 40 days but notes that Appellant utilizes the
March 31 order sentencing Appellant to 45 days. Finally, following his probation revocation
hearing, the order issued on November 20, 1995 sentenced Appellant to 45 days in the
Ru therford C oun ty W ork House .

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App. 1980). On review, the conclusions of the trial judge in a probation revocation

proceeding are accorded the weight of a jury verdict. Wall, 909 S.W.2d at 10; Stamps,

614 S.W.2d at 73 (citing Carver v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978)).

This Court employs an abuse of discretion standard when reviewing the decision of a

trial court revoking probation or a suspended sentence. State v. Harkins, 811 S.W.2d

79, 82 (Tenn. 1991) (citing 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 conditions

of probation has occurred.'" Wall, 909 S.W.2d at 10 (quoting State v. Delp, 614 S.W.2d

395, 398 (Tenn. Crim. App. 1980)).



       The record is replete with testimony and discussion regarding several instances

where Appellant allegedly returned to the Rutherford County Workhouse in an

intoxicated condition. However, because the probation violation warrant does not

allege a violation of probation based on alleged intoxication, this Court cannot condone

the trial court's decision to revoke Appellant's probation insofar as that decision is

premised on evidence of Appellant's alleged intoxication. See Practy v. State, 525

S.W.2d 677, 680, 682 (Tenn. Crim. App. 1974).

       In Practy, this Court enunciated the constitutionally-mandated procedural due

process standards as applied to a probation revocation proceeding. Id. at 679-80

(citing Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) and

Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972)). The Practy




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Court then enumerated the "`minimum requirements of due process'" as first set forth

by the United States Supreme Court in Morrissey:

                  `(a) written notice of the claimed violations of [probation or] parole;
                  (b) disclosure to the [probationer or] parolee of evidence against
                  him; (c) opportunity to be heard in person and to present
                  witnesses and documentary evidence; (d) the right to confront and
                  cross-examine adverse witnesses (unless the hearing officer
                  specifically finds good cause for not allowing confrontation); (e) a
                  "neutral and detached" hearing body such as a traditional parole
                  board, members of which need not be judicial officers or lawyers;
                  and (f) a written statement by the factfinders as to the evidence
                  relied upon and reasons for revoking [probation or] parole.'

Id. at 680 (quoting Morrissey, 92 S.Ct. 2604)

         Since the probation violation warrant fails to give notice that alleged intoxication

is a basis upon which probation revocation is sought, due process prohibits the use of

evidence of intoxication as a basis for revocation.2

         In the probation revocation warrant, Appellant did receive adequate notice of his

alleged violation of workhouse rules in the attempt to bring contraband into the facility.

The trial court found that on at least two occasions, Appellant endeavored to bring

contraband (cigarettes) into the Rutherford County Workhouse. The record amply

buttresses this conclusion. On March 22, 1995, Appellant entered the workhouse while

smoking a cigarette. Additionally, on that same date, Appellant surrendered a pack of

cigarettes to the officers searching him upon his return to the workhouse. Id. On

March 31, Appellant again attempted to bring three packs of cigarettes into the

workhouse by concealing them in his socks and shirt. We, therefore, affirm the




   2
       This arrest warrant further avers that Appellant has violated the terms of his probation by
failing to p ay his fine on A pril 1, 1995. T his refers to a $2 ,000 fine which the trial co urt ord ered to
be paid by Appellant in two installments of $1,000 each and which were due on April 1 and May 1,
199 5. Ultim ately, Appellant paid the $2 ,000 fine on M ay 26 o f that sam e year.

                                                       -5-
judgment of the trial court revoking Appellant's suspended sentence with respect to

Appellant's violation of the workhouse rules prohibiting the bringing of cigarettes into

the facility.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JOE G. RILEY, JUDGE




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