         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON          FILED
                      SEPTEMBER 1999 SESSION
                                                October 31, 1999

                                              Cecil Crowson, Jr.
                                             Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    NO. 02C01-9901-CC-00018
      Appellee,                 )
                                )    MADISON COUNTY
VS.                             )
                                )    HON. FRANKLIN MURCHISON,
PHILLIP DAVID HOWELL,           )    JUDGE
                                )
      Appellant.                )    (Revocation of Judicial Diversion)




FOR THE APPELLANT:                   FOR THE APPELLEE:

MIKE MOSIER                          PAUL G. SUMMERS
204 West Baltimore                   Attorney General and Reporter
P.O. Box 1623
Jackson, TN 38302-1623               R. STEPHEN JOBE
(On Appeal)                          Assistant Attorney General
                                     Cordell Hull Building, 2nd Floor
STEVE BEAL                           425 Fifth Avenue North
22 Monroe Avenue                     Nashville, TN 37243-0493
Lexington, TN 38351-2135
(At Hearing)                         JAMES G. (JERRY) WOODALL
                                     District Attorney General

                                     LAWRENCE E. (NICK) NICOLA
                                     Assistant District Attorney General
                                     225 Martin Luther King Drive
                                     P.O. Box 2825
                                     Jackson, TN 38302-2825




OPINION FILED:



REVERSED AND REMANDED



JOE G. RILEY, JUDGE
                                     OPINION



       Pursuant to a negotiated agreement, defendant pled guilty to aggravated

criminal trespass and assault, Class A misdemeanors, and the trial court placed him

on judicial diversion pursuant to Tenn. Code Ann. § 40-35-313. Subsequently, the

trial court found defendant in violation of his probation, revoked judicial diversion,

and imposed sentence. In this direct appeal, defendant challenges the revocation.

After a careful review of the record, we REVERSE the decision of the trial court and

REMAND for further proceedings.




                                     I. FACTS



       The victim of the underlying offenses (aggravated criminal trespass and

assault) was the wife of the defendant. At the time of the plea, divorce proceedings

were pending in the Chancery Court. In September 1997, defendant entered into

a negotiated plea agreement which provided for his placement on judicial diversion

pursuant to Tenn. Code Ann. § 40-35-313.          The diversion plan included the

following special condition of probation: “abide by all present and future orders of

this Court and of the Chancery Court of this district.”



       The agreement was signed by the assistant district attorney, defense

counsel, and defendant. At the time of this plea’s entry, defendant was under a

Chancery Court order which required payment of $1,000 per month in pendente lite

alimony to his wife.     It is undisputed that these payments were not made.

Defendant contends there is no proof that his failure to pay was willful.



       The trial court determined that defendant’s failure to pay alimony operated

as a violation of the Chancery Court’s order, which in turn violated his terms of

probation (“abide by all . . . orders . . . of the Chancery Court.”) Hence, the trial


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court revoked judicial diversion and eventually sentenced him for each conviction.1




                         II. CONDITION OF PROBATION



       Defendant challenges the reasonableness of the condition of probation

requiring him to abide by orders of the Chancery Court. The state maintains that

defendant waived this complaint since the terms of his diversion were the result of

a negotiated plea agreement.



       A trial court placing an offender on probation has the authority to impose

special conditions upon that probation. Tenn. Code Ann. § 40-35-303(d). Special

conditions may include a requirement that the offender meet his or her family

obligations. Tenn. Code Ann. § 40-35-303(d)(1).



       Since the record in this case does not contain a transcript of the guilty plea,

we must assume that the state is correct in its argument that defendant agreed to

the challenged condition of probation.         On its face that provision states that

defendant will abide by all orders of the Chancery Court. At the time he pled guilty,

there existed a Chancery Court order that, among other things, required the

payment of temporary alimony to his wife.




                          III. PROBATION REVOCATION




       1
       The trial court conducted two revocation hearings in this matter, May 1998 and
August 1998. The trial court also conducted two sentencing hearings, September 1998
and December 1998.

                                           3
       A trial court may revoke probation and order the imposition of the original

sentence upon a finding, by a preponderance of the evidence, that the person has

violated a condition of probation. Tenn. Code Ann. §§ 40-35-310, 311. The

decision to revoke probation rests within the sound discretion of the trial court.

State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of

probation is subject to an abuse of discretion standard of review, rather than a de

novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is

abused only if the record contains no substantial evidence to support the conclusion

of the trial court that a violation of probation has occurred. Id.; State v. Gregory, 946

S.W.2d 829, 832 (Tenn. Crim. App. 1997). These same standards apply in

determining a judicial diversion revocation based upon an alleged violation of

probation.



       Defendant contends that the record does not reflect that his failure to pay

alimony was willful. The findings of the trial court regarding the basis for revoking

defendant’s probation are somewhat confusing. At the August 1998 revocation

proceeding, the trial court found that defendant failed to make alimony payments

as ordered by the Chancery Court. But, when pressed to determine whether such

non-payment was willful, the court stated, “I don’t think I have to find him in willful

contempt. I just have to find that he hasn’t followed -- he hasn’t held up his end of

the bargain. And he knew about this alimony.”



       In the September 1998 proceeding, the trial court seemed to indicate that

perhaps defendant could not pay the alimony, but that such inability was irrelevant:

       TRIAL
       COURT:         [Defendant had] a chance to get out of
                      this without a criminal record, and he blew
                      that. Perhaps he couldn’t help -- I
                      shouldn’t say “blew it,” because maybe he
                      couldn’t pay. If you can’t pay, you can’t
                      pay. But that’s passed.

Shortly after, in the same proceeding, the following exchange occurred:

       DISTRICT
       ATTORNEY:             We have shown that his

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                             noncompliance with [the
                             Chancery Court’s] order is
                             willful.

       TRIAL
       COURT:                I have already found that.

Our review of the record does not indicate a prior specific finding of willful non-

compliance. Furthermore, there is no written order of revocation from which to

clarify the remarks of the trial court.



       The trial court revoked defendant’s probation for failure to pay alimony as

ordered by the Chancery Court. In this particular situation, we respectfully disagree

with the trial court’s statement that it did not have to find defendant in willful non-

compliance with the Chancery Court order so as to justify the revocation of

probation.



       The mere existence of an alimony order does not signify an ability to pay.

If, in fact, defendant was financially unable to make alimony payments, then he

would not be in willful non-compliance with the Chancery Court’s order, and

probation cannot be revoked for that reason. See generally Bearden v. Georgia,

461 U.S. 660, 672-73, 103 S.Ct. 2064, 2073, 76 L.Ed.2d 221 (1983); State v. Dye,

715 S.W.2d 38, 40 (Tenn. 1986).



       Although there was some proof concerning defendant’s bank account from

which the trial court might have found willful non-compliance, we are unable to

determine whether the trial court actually found willful non-compliance. Since such

a finding is necessary, we must reverse defendant’s revocation and remand for a

new revocation hearing.2




                    IV. RECOMMENDATION UPON REMAND


       2
         We note that the trial judge who originally conducted these proceedings is now
retired. Thus, it would not appear feasible to simply remand for findings.

                                            5
       In its brief, the state cites to this Court’s decision in State v. Dominic Jude

Amari, C.C.A. No. 01C01-9703-CR-00077, Tenn. Crim. App. 1998 LEXIS 682,

(Tenn. Crim. App. filed June 30, 1998, at Nashville) in support of its argument that

revocation based upon violation of another court’s order is proper. In that case, the

defendant entered into a judicial diversion agreement which required him to “abide

by all orders of any court with domestic jurisdiction.” The circuit court with civil

jurisdiction found defendant in criminal contempt for discussing divorce matters in

the presence of his minor son.        At a later date, the criminal court revoked

defendant’s probation on the basis that he “violated the order of the circuit court

respecting his domestic case.” This Court upheld the probation revocation, stating,

“the evidence of appellant’s contempt order was sufficient to support the trial court’s

decision to revoke his probation.” Dominic Jude Amari, 1998 LEXIS 682, at *3. We

note, however, that unlike the case at bar, in Amari the criminal court had a prior

finding of criminal contempt by the civil court upon which to base it’s probation

revocation.



       We cannot help but note that it appears questionable whether the trial court

and defense counsel shared the state’s understanding of the challenged provision’s

effect. It is apparent from the record that the language of the provision was

included by the prosecutor for the primary purpose of enforcing the Chancery

Court’s alimony order. The assistant district attorney (ADA) stated at the May 1998

revocation proceedings, “as far as . . . the [Chancery Court’s] order [requiring

defendant] to make alimony payments . . . the State was aware of this situation, and

that is why we put in the orders ‘to abide by all future and present orders of the

Chancery Court.’”




       The victim testified at the August 1998 revocation proceeding that she and

the ADA thoroughly discussed the challenged condition of probation in the context

of her desire to receive alimony payments:



                                          6
      DEFENSE
      COUNSEL: [the ADA] advised you at that time that
               you couldn’t put in there that [defendant]
               would have to pay alimony as a part of
               this [plea] agreement?

      VICTIM:       He said that we could put in there that he
                    had to obey all other Court orders . . . or
                    any . . . order in Chancery Court.

      DEFENSE
      COUNSEL: Now, mainly what you were speaking
               about was concerning the staying away
               from you --

      VICTIM:       No, sir. My big concern was the alimony.


      In both the August and September hearings, the ADA confirmed that

enforcement of the alimony order was the intent of the provision.



      At the September 1998 sentencing proceeding, the ADA discussed the

state’s desire that defendant be placed “under the gun” of the criminal court:

      “[T]he State of Tennessee doesn’t have [defendant] under the gun in
      Chancery Court. The State of Tennessee is in here hoping to have
      him under the gun in this court. We can only have him under the gun
      in the criminal case, and that’s what we are asking Your Honor to do
      -- is to keep him under the gun also in the criminal case.



      However, defense counsel made various statements evidencing a different

understanding of the provision’s effect. At the May 1998 proceeding, defense

counsel stated:

      “It was our understanding . . . that we were to abide by the portions
      . . . [related to] the situation to stay away from her -- the Order of
      Protection and the Restraining Orders. . . I did not advise him . . . that
      this order involved him having to pay alimony payments as part of his
      plea agreement on this criminal charge.”

      ...

      “When [the ADA] and I were negotiating this . . . [the ADA] was
      interested . . . concerning the Restraining Orders and . . . keeping [the
      parties] separated . . . that’s what we understood [to be] the gist of it
      . . . I was pretty much flabbergasted by what was being brought up in
      the Court. I had no idea that [the alimony order] would be relevant.”

Defense counsel also made similar statements at both the August and September

proceedings.



                                          7
       Similarly, the trial court stated at the May 1998 proceeding:

       “[Defendant] may not have understood that he had that [obligation].
       Okay. . . . You know -- this is kind of -- maybe a tough situation for
       [defendant] because you start crisscrossing a divorce case with a
       criminal case like this, and it can be pretty difficult and cause some
       problems. It has in his case.”

At the August 1998 proceeding the trial court stated:

       “This is something unusual -- a broad statement saying that my
       probation is based upon [defendant] following some rules of some
       other Court. . . . The Chancery Court has got their business, and
       we’ve got our business. . . . Here -- somebody got this thing in here
       about the Chancery Court and . . . everybody agreed to it, and that’s
       the way it went down.”

The trial court’s frustration is particularly apparent in its statement at the September

1998 sentencing:

       “I’ll be honest with you . . . if I had thought more, I probably would
       never have approved this in the first place . . . .” (Emphasis added.)

In fact, the trial court in sentencing defendant after the revocation declined to

impose this same requirement as a condition of probation.



       That is not to say that a criminal court cannot make compliance with another

court’s orders a condition of probation. However, in cases where civil divorce

matters and criminal matters become entwined, we suggest it is far preferable that

the civil court be given an opportunity to adjudicate it’s own contempt matters before

the criminal court uses violation of the civil court order as a basis for probation

revocation. See generally Dominic Jude Amari, supra.



       We share the frustration of the trial judge who found himself conducting

several proceedings relating to the non-payment of alimony as ordered by the

Chancery Court. The underlying charges in criminal court were aggravated criminal

trespass and assault. We also understand the frustration of the victim who was

unable to receive the alimony as ordered by the Chancery Court. Nevertheless, it

does not appear to be in the interest of justice to put a defendant “under the gun”

of the criminal court to adjudicate any and all issues relating to civil litigation in

another court. At the very least, the criminal court, under these circumstances, has



                                           8
discretion as to whether to proceed with a revocation hearing prior to an

adjudication by the civil court. However, since all probationers are required to abide

by the law, a finding of criminal contempt by the civil court can certainly be used as

a basis for revocation.




                                 V. CONCLUSION



       Based upon the foregoing, we REVERSE the probation revocation and

termination of judicial diversion and REMAND for further proceedings.




                                                ____________________________
                                                 JOE G. RILEY, JUDGE




CONCUR:




____________________________
DAVID G. HAYES, JUDGE




____________________________
THOMAS T. WOODALL, JUDGE




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