         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   January 14, 2004 Session

                    STATE OF TENNESSEE v. AGEE GABRIEL

                        Appeal from the Circuit Court for Giles County
                             No. 6282    Stella Hargrove, Judge



                      No. M2002-01605-CCA-R3-CD - Filed July 12, 2004


Agee Gabriel appeals from the Giles County Circuit Court’s revocation of his probationary sentence.
Alleging myriad procedural and substantive errors, he asks this court to reverse the revocation order.
However, we are unpersuaded of error and therefore affirm the lower court.

               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JOHN EVERETT WILLIAMS, JJ., joined.

Michael H. Sneed, Nashville, Tennessee, for the Appellant, Agee Gabriel.

Paul G. Summers, Attorney General & Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Mike Bottoms, District Attorney General; and Beverly White, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION

                On November 22, 1993, the defendant was placed on probation in Lawrence County
for a period of eight years following a conviction for a drug offense. Probation supervision was
transferred to Davidson County. At some point, the defendant went to Louisiana without permission
of Tennessee authorities and committed criminal acts for which he was incarcerated. He entered the
Louisiana correctional system in early February 1999, was released in July 2001, and returned within
a few days of his release to Tennessee.

                Tennessee authorities filed a probation violation warrant against the defendant on
February 4, 1999, which alleged that the defendant (1) had been arrested and charged with robbery,
unlawful possession of a weapon, and marijuana possession, (2) had been in possession of a firearm
despite the fact that he was a convicted felon, and (3) had possessed marijuana despite probation
rules which prohibited him from using intoxicants and required him to submit to drug screens.
                A first amendment to the revocation warrant was filed on February 19, 1999, which
alleged that the defendant had been arrested for possession of marijuana with intent to resell and had
traveled out of state without his probation officer’s permission.

              A second amendment was filed on February 15, 2002, which alleged that the
defendant had been arrested for possession of marijuana for resale and evading arrest.

               A third and final amendment was filed on May 8, 2002, in which it was alleged that
the defendant (1) had been indicted for possession of cocaine for resale, driving on a revoked license,
and violation of the “light” law, (2) had not reported since September 9, 1998, and (3) had made no
payment on his outstanding court costs of $778 since August 17, 1998.

                Following the return of the defendant to custody, the matter proceeded to hearing.
The defendant challenged the efficacy of the initial warrant because the criminal charges underlying
the allegations of that warrant had all been dismissed. He alleged that he had never been served with
the first amendment to the violation warrant. The defendant took the position that his probation
expired on November 22, 2001, eight years after it had been imposed, and the second and third
amendments were untimely because they were filed after the sentence expiration date. Likewise, he
claimed that the substantive allegations of the second and third warrants were of no effect because
they alleged conduct which occurred after the probationary sentence expired. The defendant
conceded that he had traveled out of state without obtaining permission, that he had not reported as
required, and that he had not paid his court costs.

                 The lower court found that the state failed to prove that it had served the defendant
with the first amendment to the warrant and failed to prove the allegations of the second amendment.
However, the court held that the state had proven the factual allegations of the third amendment.
The court did not specifically address the factual allegations of the original warrant, but it ruled that
the dismissal of the underlying criminal charges did not affect the vitality of the warrant. Upon the
finding of violations, the court ordered the defendant to serve his original incarcerative sentence.

                             Validity of Original Revocation Warrant

                The defendant raises multiple issues which hinge upon the efficacy of the original
warrant. He claims that the lower court erred in finding that he violated probation based upon this
warrant because the underlying charges were dismissed, the dismissal implying that the defendant
was not guilty of them. He also claims that the dismissal of those charges “renders void any attempt
to amend the probation violation warrant.” Further, he argues that because the warrant became void
upon dismissal of the underlying charges, the limitations period is not tolled for the filing of
additional violation allegations.

              We begin our analysis by noting that the lower court did not base its revocation
decision upon a finding that the defendant committed the acts alleged in the original violation



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warrant. Therefore, the first component of the defendant’s challenge, that the court erred by
premising revocation upon the allegations contained in the warrant, is without merit.

                 With respect to the second component, the claim that the state may not proceed on
the violation warrant following the dismissal of the charges alleged therein, we are not persuaded.
The defendant cites no authority for this proposition, and we are aware of none which supports his
position. To be sure, this court has previously held that a revocation may be premised upon proven
allegations of a violation warrant, even if the criminal charges arising from those allegations have
been dismissed or the defendant has been acquitted at trial. State v. Mitzi Ann Boyd, No.
03C01-9508-CC-00246, slip op. at 3 (Tenn. Crim. App., Knoxville, Nov. 1, 1996) (“When the
underlying facts constitute a violation, the eventual dismissal of criminal charges arising out of that
violation is largely irrelevant.”); State v. Larry D. Turnley, No. 01C01-9403-CR-00094, slip op. at
5 (Tenn. Crim. App., Nashville, Dec. 22, 1994) (“The fact that the Defendant was not convicted of
any of the offenses with which he was charged does not mandate dismissal of the probation violation
warrant.”); See State v. Delp, 614 S.W.2d 395, 396-97 (Tenn. Crim. App. 1980) (revocation may be
based upon criminal acts alleged in violation warrant even though defendant was acquitted of
charges for underlying acts). Based upon these authorities, we reject the defendant’s argument.

                The defendant also claims that the original warrant, because it alleged criminal acts
for which the underlying charges were ultimately dismissed, did not toll the running of the limitation
period for filing violation allegations. Because we have held above that the validity of the original
warrant was not affected by the dismissal of the criminal charges arising from the acts alleged in the
warrant, we likewise reject this claim. See Mitzi Ann Boyd, slip op. at 3; Larry D. Turnley, slip op.
at 5; Delp, 614 S.W.2d at 396-97. It is well established that the filing of a revocation warrant tolls
the limitations period for prosecuting a violation of probation. See, e.g., State v. Shaffer, 45 S.W.3d
553, 555 (Tenn. 2001); Allen v. State, 505 S.W.2d 715, 717 (Tenn. 1974). Furthermore, due to the
tolling effect of a pending revocation warrant, an amendment filed during a warrant’s pendency is
not subject to dismissal on the basis that it is untimely. Shaffer, 45 S.W.3d at 555.

                            Propriety of Judge Presiding at Hearing

                The defendant claims for the first time on appeal that Judge Stella Hargrove erred by
conducting the revocation hearing because Judge Jim Hamilton was the sentencing judge and should
have conducted the revocation hearing. This issue is without merit for two reasons. First, the
defendant waived any objection to Judge Hargrove presiding at the hearing by failing to object at that
time. See Tenn. R. App. P. 36(a); State v. Billy Gene Oden, Jr., No. 01C01-9710-CC-00468, slip
op. at 4-5 (Tenn. Crim. App., Nashville, Dec. 7, 1998). Perhaps more significantly, the statute
allows for a probation revocation hearing to be conducted by “the trial judge granting such probation
and suspension of sentence, the trial judge’s successor, or any judge of equal jurisdiction who is
requested by such granting trial judge . . . .” See Tenn. Code Ann. § 40-35-311(b) (2003). The
appellate record in this case is silent on the issue whether Judge Hargrove was outside any of these
categories. As the appellant, the defendant has the burden of demonstrating error. In the absence
of such demonstration, he cannot prevail on appeal.


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                                            Grounds for Revocation

                 We now move to consideration of the propriety of the revocation itself. The standard
of review upon appeal of an order revoking probation is abuse of discretion. State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991). In order for an abuse of discretion to occur, the reviewing court must
find that the record contains no substantial evidence to support the conclusion of the trial judge that
a violation of the terms of probation has occurred. Id. at 82; Delp, 614 S.W.2d at 398. The trial
court is required only to find that the violation of probation occurred by a preponderance of the
evidence. Tenn. Code Ann. §§ 40-35-311(e) (2003). Upon finding a violation, the trial court is
vested with the statutory authority to “revoke probation and suspension of sentence and cause the
defendant to commence the execution of the judgment as originally entered.” Id. Furthermore, when
probation is revoked, “the original judgment so rendered by the trial judge shall be in full force and
effect from the date of the revocation of such suspension.” Tenn. Code Ann. §§ 40-35-310 (2003).
The trial judge retains the discretionary authority to order the defendant to serve the original
sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

                The lower court found that state failed to prove that it had served the defendant with
the first amendment to the violation warrant. That court also ruled that the state had not proven the
allegations of the second amendment. The lower court did not address whether the state had proven
the allegations of the original warrant. As we will discuss below, the allegations of the third
amendment were adequately proven at the hearing and properly relied upon by the lower court in
revoking probation. It is therefore unnecessary that we be concerned with the quantum of proof with
respect to the original warrant and other amendments or the sufficiency of service of the first
amendment.

                The defendant admitted at the hearing that he had not reported or paid costs as
required, and on appeal he does not contest the lower court’s findings in that regard.1 For this reason
alone, the revocation itself was proper. See State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App.
1999) (defendant’s concession of act constituting violation of probation constitutes substantial
evidence of violation, and trial court’s revocation based thereon is not abuse of discretion).
Furthermore, the state presented proof that the defendant was apprehended in possession of a sizable
amount of crack cocaine and had driven on a revoked license. The defendant did nothing which
diminished this proof. In light of the multiple violations and their egregious nature, we see no abuse
of discretion in ordering the original incarcerative sentence into execution.




         1
           W e are mindful that in Bearden v. Georgia, 461 U.S. 660, 672, 103 S. Ct. 2064, 2073 (1983), the United States
Supreme Court held that during a revocation hearing for failure to pay a fine or restitution, a trial court must “inquire
into the reasons for the failure to pay.” Because in this case there are independent bases for the revocation and because
the defendant admitted he had not paid his costs and does not raise a challenge to his ability to pay, we have not
considered whether the lower court should not have relied upon this basis to support, in part, the revocation.



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                             Written Specifications for Revocation

                 Finally, we have not overlooked the defendant’s claim that the lower court erred by
failing to set forth its specific factual findings in written form. The defendant is correct that due
process requires written specifications of the basis for revocation. See Gagnon v. Scarpelli, 411 U.S.
778, 786, 93 S. Ct. 1756, 1761 (1973); State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993). However,
the court announced its findings at the conclusion of the hearing. Its oral findings were sufficiently
detailed to inform the parties of the basis of its decision. Thereafter, the court authenticated the
transcript that was prepared of the hearing, which included its oral findings and ruling. This court
has considered such to be substantial compliance with the procedural requirements due process
affords. See, e.g., Delp, 614 S.W.2d at 397. We therefore reject this as a basis for disturbing the
lower court’s ruling.

               For all of these reasons, we affirm the lower court.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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