         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs April 23, 2002

             STATE OF TENNESSEE v. ROBERT ANDREW LEWIS

                   Direct Appeal from the Criminal Court for Knox County
                          No. 72846, 72847 Ray L. Jenkins, Judge



                                 No. E2001-02305-CCA-R3-CD
                                       August 22, 2002

Defendant, Robert Andrew Lewis, pled guilty to two counts of driving under the influence of an
intoxicant, first offense, in the General Sessions Court of Knox County. The trial court imposed
concurrent sentences of confinement for 11 months and 29 days, with all but 10 days of the sentences
suspended. In addition, the trial court suspended Defendant’s driving privileges for one year, and
ordered him to pay a fine of $350.00 and attend DUI school. Within one year, a violation of
probation warrant was issued, alleging that Defendant was driving on a revoked license, arrested for
DUI, and had failed to complete DUI school. The General Sessions Court of Knox County revoked
Defendant’s probation and reinstated his sentences for both offenses. Defendant appealed to the
Criminal Court of Knox County. On the date that his case was to be heard, Defendant’s trial counsel
did not appear in court. As a result, the criminal court dismissed the appeal for failure to prosecute
and affirmed the judgment of the Knox County General Sessions Court revoking Defendant’s
probation. After a review of the record and applicable law, we reverse the judgment of the criminal
court and remand this case for a de novo hearing on the probation revocation warrant.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY
L. SMITH, JJ., joined.

Joe M. Felknor, Knoxville, Tennessee, for the appellant, Robert Andrew Lewis.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall Eugene Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney
General, for the appellee, State of Tennessee.




                                             OPINION
                                            Background

       On June 7, 2000, Defendant was convicted of two separate offenses of driving under the
influence of an intoxicant, Tenn. Code Ann. § 55-10-401, first offense, in the General Sessions Court
of Knox County. He was sentenced to serve concurrent terms of 11 months and 29 days
confinement, with all except 10 days suspended, on both warrants (nos. 507630 and 494354). In
addition, the trial court imposed a fine of $350.00, ordered that Defendant attend DUI school, and
suspended his driving privileges for one year.

        Approximately seven months later, on January 17, 2001, a violation of probation warrant was
issued in the general sessions court alleging that Defendant had “failed to comply with the conditions
of his probation by getting arrested for DUI and driving on a revoked license on November 10, 2000
and failure to complete DUI school.” On June 14, 2001, the general sessions court ordered that
Defendant’s probation upon his two DUI convictions, warrants Nos. 507630 and 494354, be
revoked. On the same day Defendant filed an appeal to the criminal court for a de novo hearing in
both cases. Upon his appeal to the criminal court and demand for a de novo hearing, Defendant was
released on his own recognizance.

        On July 11, 2001, Defendant appeared with counsel in the Criminal Court of Knox County,
at which time he waived the reading of the warrants, reserved entry of his plea, and requested a
motion date. According to Defendant’s counsel, the motions (which were not described) may have
been “dispositive” of his case. Specifically, counsel claimed that the general sessions court failed
to comply with constitutional requirements which must be fulfilled prior to revoking a defendant’s
probation. Defendant’s motion hearing was scheduled to occur on August 23, 2001, but his counsel
failed to appear in criminal court on that date. The record reflects that the following colloquy
occurred:

       THE COURT:              Has anyone seen [Defendant’s counsel]?

       [PROSECUTOR]:           He came in during the recess.

       (After the final calling of the docket, the further following proceedings were had in
       this case:)

       [PROSECUTOR]:           Your Honor, as to the Lewis case, [Defendant’s counsel] is
                               not here. This is an appeal from Sessions Court. I would
                               move that the Court confirm [sic] the Sessions Court.

       THE COURT:              All right. All right. Adjourn.

       [PROSECUTOR]:           – this was the trial date.




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        Although the record does not reflect that Defendant was present in the courtroom, it also fails
to reflect that he was not present. We surmise that if Defendant had not been present at this
proceeding, the trial court would have noted as much, revoked the order allowing release upon his
own recognizance, and ordered that a capias be issued.

        In an order filed August 24, 2001, the Criminal Court for Knox County dismissed
Defendant’s appeals concerning his probation revocation for “failure to prosecute,” and affirmed the
judgment of the Knox County General Sessions Court (revoking Defendant’s probation). On appeal
to this Court, both cases have been consolidated for our consideration and the following issues are
presented: (1) whether the trial court erred by dismissing Defendant’s appeal for “failure to
prosecute” and by affirming the general session court judgment revoking Defendant’s probation on
the ground that his counsel failed to appear in court; and (2) whether the trial court erred by
affirming the judgment revoking Defendant’s probation whereas his placement on probation was not
valid in the first place.

                                              Analysis

       First, we address Defendant’s contention that the trial court erred by dismissing his de novo
appeal for “failure to prosecute” and by affirming the general sessions court’s revocation of his
probation on the ground that his counsel failed to appear in court.

       Tennessee Code Annotated section 40-35-311 provides that

                Whenever any person is arrested for the violation of probation and suspension
       of sentence, 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 to do so shall, at the earliest practicable time, inquire into the
       charges and determine whether or not a violation has occurred, and at such inquiry,
       the defendant must be present and is entitled to be represented by counsel and has
       the right to introduce testimony in the defendant’s behalf.

Tenn. Code Ann. § 40-35-311(b) (1997 & Supp. 2001) (emphasis added).

         If the trial judge finds that the defendant violated the conditions of his probation by a
preponderance of the evidence and, as a result, causes the defendant to commence execution of the
judgment as originally entered, the defendant has the right to appeal. See Tenn. Code Ann. 40-35-
311(e) (Supp. 2001). Tennessee Code Annotated subsection 27-5-108(a) provides that any party
may appeal from an adverse decision of the general sessions court to the circuit court of that county
within ten (10) days. Subsection (c) states that such appeal “shall be heard de novo in the circuit
court.” Tenn. Code Ann. § 27-5-108(c) (2000).

       In State v. Cunningham, 972 S.W.2d 16 (Tenn. Crim. App. 1998), the defendant’s probation
was revoked by the Municipal Court of Jackson, Tennessee. The defendant appealed the revocation


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to the Circuit Court of Madison County, and the circuit court affirmed the municipal court’s
judgment without conducting a de novo hearing. A panel of this Court reversed and remanded the
case to the circuit court for a de novo probation revocation hearing. In doing so, our Court stated
that “[i]n a de novo review, ‘the parties are entitled to a reexamination of the whole matter of law
and fact.” Id. at 18 (quoting Richards v. Taylor, 926 S.W.2d 569, 570 (Tenn. App. 1996)). The
reviewing court is not concerned with what took place in the lower court; instead, “the matter is tried
as if no other hearing had occurred.” Id. (citing Hohenberg Bros. Co. v. Missouri Pac. R.R. Co., 586
S.W.2d 117, 119 (Tenn. App. 1979)). In other words, “[a] de novo hearing encompasses more than
just the presentation of proof. The court must try the matter as if no judgment had previously been
rendered.” Id.

        In State v. Winebarger, 70 S.W.3d 99 (Tenn. Crim. App. 2001), our Court found that the trial
court erred in dismissing the defendant’s appeal of the general sessions court sentence for “failure
to prosecute” where the defendant arrived at court approximately one hour late. Relying on
Cunningham, we reversed and remanded the matter to the trial court for a de novo hearing upon a
finding that “an appeal by a defendant in a criminal case from general sessions court is of such
significance that it should not be dismissed merely because a defendant is one hour late for court.”
Id. at 102.

       Under Cunningham, Defendant is entitled to a de novo reexamination of the whole matter
of law and fact. In the case sub judice, Defendant’s trial counsel failed to appear in court, but the
record does not indicate that Defendant was not present. Further, the record does not suggest that
Defendant was in any way responsible for his counsel’s absence. Statutory law provides that a
defendant who is charged with a probation violation is entitled to be: (1) present at the probation
revocation hearing, (2) represented by counsel, and (3) allowed to present testimony on his behalf.
See Tenn. Code Ann. § 40-35-311(b) (1997 & Supp. 2001). Consequently, we conclude that the
criminal court’s dismissal for “failure to prosecute” and subsequent affirmation of the general
sessions court’s revocation of Defendant’s probation was not proper under the circumstances
presented here. Since we find it was error for the trial court to dismiss the appeal from general
sessions court on the ground that Appellant’s counsel was not present in the courtroom when the
case was called, this case is remanded for a for a de novo hearing in the criminal court concerning
the probation revocation in each case.

        Defendant also claims that a probation violation cannot be found because the judgments fail
to contain an express provision placing him on probation in the first place. He contends that it is
unconstitutional to “read into” the judgments that which is not expressly stated therein. Defendant
claims that, since he was not on probation, he was not subject to revocation thereof and the trial court
should have dismissed the violation of probation warrants against him.

         Although Defendant’s counsel claimed at the proceeding in criminal court on July 11, 2001
that motions would be, or had been, filed which may be “dispositive” of the case, the appellate
record contains no such motion(s). The record further reveals that no motions were ever presented
to the trial court. Generally, an appellate court may review only those issues which were previously


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presented for determination in the lower court. See Tenn. R. App. P. 36(a); Fahrner v. S.W. Mfg.,
Inc., 48 S.W.3d 141, 148 (Tenn. 2001); Norton v. McCaskill, 12 S.W.3d 789, 795 (Tenn. 2000);
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) (“It has long been the general rule that
questions not raised in the trial court will not be entertained on appeal . . . .”). Therefore, this issue
is not properly before us.

                                              Conclusion

        For the reasons stated in this opinion, the judgment of the trial court is reversed, and this case
is remanded for a de novo hearing in the criminal court concerning the probation revocation in each
case. The trial court should also allow Defendant to present any motions which have been timely
filed by Defendant concerning the revocation of probation.



                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




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