           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                                    Assigned on Briefs May 14, 2002

                     STATE OF TENNESSEE v. JESS R. AMONETTE

                        Appeal from the Circuit Court for Williamson County
                        Nos. II-11-100 & II-100-10   Timothy Easter, Judge



                        No. M2001-02952-CCA-R3-CD - Filed August 29, 2002


Jess R. Amonette appeals from the Williamson County Circuit Court’s revocation of his
probationary sentence. He claims that the lower court exceeded its discretion in revoking probation
and ordering him to serve his sentence in confinement. In case number II-100-10, we notice as a
matter of plain error that the sentence expired prior to initiation of revocation proceedings. We
therefore reverse the revocation order and dismiss revocation proceedings in that case. In case
number II-11-100, the record does not reflect the lower court’s findings from which we can
determine the basis for its ruling, and we therefore remand for further consideration.

        Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JOE G. RILEY, JJ., joined.

Erik R. Herbert, Nashville, Tennessee, for the Appellant, Jess R. Amonette.

Paul G. Summers, Attorney General & Reporter; Renee W. Turner, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Mark K. Harvey, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                     OPINION

                In case number II-100-10, the defendant pleaded guilty to second-offense driving
under the influence, three counts of simple possession of drugs, and one count of possession of drug
paraphernalia. For each of these offenses, he received a sentence of eleven months and twenty-nine
days, 60 days of which was to be served in confinement. The sentences were to be served
concurrently. In case number II-11-100,1 the defendant pleaded guilty to one count of simple
possession of drugs and one count of possession of drug paraphernalia. For the drug offense, he was
sentenced to eleven months and twenty-nine days, 60 days of which was to be served in confinement.

       1
           The docke t numbers used herein are as they appear on the trial court’s indictments.
For the paraphernalia offense, he was sentenced to serve eleven months and 29 days on probation.
These sentences were imposed concurrently to each other but consecutively to the sentences in case
number II-100-10. Thus, the defendant’s effective sentence was just shy of two years, with the first
60 days being served in confinement.2

                 The defendant came before the court to face allegations of probation violations in
both cases after two drug screens revealed the presence of narcotics in his body. Amonette admitted
the violation; thus, the only issue before the court was the effect of the violation on the probationary
sentences originally imposed.

                The evidence presented was as follows. The defendant, by all accounts, fared well
on probation from the time of his sentencing on February 28, 2000, until he failed a drug screen more
than one year later on May 23, 2001. According to the defendant’s testimony, he had completed
drug rehabilitation treatment during the earlier portion of his probationary sentence but later relapsed
when he was no longer attending follow-up care. He claimed that he voluntarily submitted to an
evaluation after the positive screen. He was unable to afford the 30-day inpatient treatment program
recommended for him, so he attended some Narcotics Anonymous and Cocaine Anonymous
meetings on his own. Nevertheless, he had a second positive drug screen on July 18, 2001. He
testified that he was not able to leave his family business for inpatient treatment because a key
employee had a stroke in July 2001. Additionally, the defendant’s grandfather had undergone heart
bypass surgery the previous fall and was unable to work in the business as much as he had in the
past. The defendant claimed to have changed the friends with whom he associated as part of his
effort to remain off drugs, but he had been at a party when someone unexpectedly had drugs. He was
enticed to use drugs and thereafter began using about four to five grams of cocaine a month. He
acknowledged that he had not gone to his probation officer or his grandfather for assistance with his
drug problem. He claimed that he was too ashamed of his relapse to seek his grandfather’s
assistance.

              The defendant’s grandfather testified that the defendant was a valued employee of the
family business, which the grandfather owned. He characterized the prospect of the defendant’s
absence as “devastating” for the business. The defendant’s grandfather had not realized earlier that
his grandson had a drug problem, but he offered to pay for treatment if the court would allow the
defendant another chance.

               The defendant’s probation officer testified that the defendant had done all that was
expected of him save passing the drug screens. She stated that she believed the defendant’s sincerity
about addressing his drug problem, and she advocated that the defendant be offered a second chance.

               Upon receiving the evidence, the court noted the difficulty it faces in dealing with
drug-addicted individuals. The court noted further that two individuals who were present in the


        2
           It appears from the somewhat anomalous wording of the judgment in case II-11-100 that the defendant was
to serve a total of 60 days confinem ent for both sentences.

                                                       -2-
courtroom that day would be the subject of sentencing hearings later, and these individuals had drug
addictions. The court commented that if it extended leniency to Amonette for violating the terms
of his probation by using drugs, these other two individuals might not be deterred from further drug
use during any probationary period that might be imposed as part of their sentences. The court
further commented that Amonette had given his word to the court at sentencing that he would abide
by the terms of probation, and he had been warned that a violation would result in revocation. The
court did not, however, make any factual findings based upon the evidence presented. For example,
the court did not make any determinations relative to witness credibility. The court ordered the
probationary sentences in both cases revoked; thus, the defendant was required to serve his sentences
in the county jail.

                                                  I

               Although the issue has not been raised in this appeal, we note that the defendant’s
sentence in case II-100-10 expired prior to initiation of revocation proceedings. The sentence was
imposed on February 28, 2000, and the revocation warrant was filed on June 18, 2001. The effective
sentence in case II-100-10 was for eleven months and 29 days, which time expired prior to June 18,
2001. Thus, the lower court erred in allowing the state to pursue revocation in that case. See Tenn.
Code Ann. § 40-35-310 (1997) (trial court may revoke suspension of sentence “at any time within
the maximum time which was directed and ordered by the court for such suspension”); State v.
Schafer, 45 S.W.3d 553, 555 (Tenn. 2001) (trial court generally must revoke probation within
probationary period, although issuance of revocation warrant within probationary period will toll
passage of time within which court must act); State v. Larry Ammons, No. W2001-00834-CCA-R3-
CD, slip op. at 5 (Tenn. Crim. App., Jackson, Mar. 18, 2002) (lower court erroneously revoked
probation in case in which sentence had expired; case remanded for corrected order revoking
probation only in unexpired case); State v. Randall Anthony, No. W2000-02234-CCA-R3-CD, slip
op. at 3 (Tenn. Crim. App., Jackson, July 6, 2001) (probation erroneously revoked in first of two
consecutive sentences because defendant had completed service of first sentence prior to issuance
of revocation warrant).

                At the revocation hearing, the court inquired whether the sentence in case II-100-10
had expired. The state contended that it had not, and the defense essentially conceded that it had not.
The state indicated that the judgment forms might have been erroneously prepared, and that if the
court believed it was without revocation authority in case II-100-10, then the judgment forms might
be the proper subject of amendment for clerical error. However, no such correction was made.
Furthermore, all of the defendant’s convictions are for Class A misdemeanor crimes, the sentence
for which generally is not greater than eleven months and 29 days. See Tenn. Code Ann. § 40-35-
111(e)(1) (1997). Thus, unless there was an error in recording the correct crimes which formed the
basis of the defendant’s conviction, the defendant was not eligible for a sentence longer than eleven
months and 29 days in case II-100-10.

               Accordingly, we reverse the lower court’s order revoking probation in case II-100-10.



                                                 -3-
                                                          II

                We now advance to the issue of the propriety of revocation in case II-11-100. The
standard of review upon appeal of an order revoking probation is the abuse of discretion standard.
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). 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; State v. Delp, 614 S.W.2d
395, 398 (Tenn. Crim. App. 1980). 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) (Supp.
2001). 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." Id. § 40-35-310 (1997). The trial judge retains the discretionary authority to order the
defendant (1) to serve his sentence in incarceration; (2) to serve the probationary term, beginning
anew; or (3) to serve a probationary period that is extended for up to an additional two years. State
v. Hunter, 1 S.W.3d 643 (Tenn. 1999). The decision of the proper consequence embodies a separate
exercise of discretion from the initial finding that a violation has occurred. See id. at 647; State v.
Ricio L. Conner, No. 02C01-9807-CR-00201 (Tenn. Crim. App., Jackson, Oct. 31, 1999); State v.
Duke, 902 S.W.2d 424, 427 (Tenn. 1995).

                 By pleading guilty to the allegations of the violation warrants, the defendant conceded
that there was an adequate basis for a finding that he had violated the terms of probation. See State
v. Michael Emler, No. 01C01-9512-CC-00424, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 27,
1996) (where the defendant admits violation of the terms of probation, revocation by the trial court
is not arbitrary or capricious); State v. Mitzi Ann Boyd, No. 03C01-9508-CC-00246 (Tenn. Crim.
App., Knoxville, Nov. 1, 1996). Thus, the only question we must answer is whether the court abused
its discretion in ordering the defendant to serve the remainder of his sentence in the county jail.

                In that regard, the record reflects that the lower court was concerned with the need
to deter other defendants who might receive probation. The record does not reflect, however,
whether the court considered any facts relative to the defendant Amonette’s case, such as the court’s
perception of the defendant’s amenability to rehabilitation, sincerity, and the like. Without any such
findings in the record, we are unable to know whether the court’s decision was a conscientious and
intelligent one based upon the facts of the case.3 Cf. State v. John Earl Turner, E2001-01373-CCA-
R3-CD (Tenn. Crim. App., Knoxville, July 12, 2002) (record must reflect court’s findings relative
to probation revocation). This is particularly the case where, as here, the testimony is essentially



         3
          Thus, we distinguish this case from State v. Jerry O. Su mm ers, M200 1-01 358 -CCA-R3-CD (Te nn. Crim. Ap p.,
Nashville, July 19, 2002), in which the court denied the defendant’s request for further probation following revocation
based upon both “the conclusion that all others in the court will lose respect for the probation program” and the
individual facts of that case, including the defendant’s repeated failures at past rehabilitation.

                                                          -4-
undisputed, and the only question for the court is the credibility and sincerity of the witnesses who
offered that testimony to the court.

                 This case is one in which the evidence in the appellate record presents at least a basis
for extending some leniency to a possibly penitent defendant with a supportive family and probation
officer. However, this court, unlike the lower court, was unable to conduct a first-hand assessment
of the defendant, his grandfather, and his probation officer at the time of their testimony.4 As such,
the lower court is the proper entity to make appropriate factual findings regarding the believability
and reliability of the witnesses’ testimony, and ultimately, to rule upon the defendant’s bid for further
probation.

                Accordingly, we reverse the lower court’s order revoking the defendant’s probation
in case II-11-100 and remand with instructions that the court make the appropriate factual findings
and enter an order in accordance with those findings. Additionally, for the reasons stated above in
section I, we reverse the lower court’s order revoking the defendant’s probation in II-100-10.




                                                              ___________________________________
                                                              JAMES CURWOOD WITT, JR., JUDGE




        4
         Despite the use o f a video record in this case, we decline to use the video as a means of substituting our
impressions of credibility for those formed by the trial court.

                                                        -5-
