                                                    FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE
                                                      June 22, 1998
                           APRIL 1998 SESSION
                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk

STATE OF TENNESSEE,                )
                                   )
           Appellee,               )     C.C.A. No. 03C01-9707-CC-00271
                                   )
vs.                                )     Blount County
                                   )
REGINA ANN OWEN,                   )     Hon. D. Kelly Thomas, Jr., Judge
                                   )
           Appellant.              )     (Probation Revocation)




FOR THE APPELLANT:                       FOR THE APPELLEE:

MACK GARNER (on appeal)                  JOHN KNOX WALKUP
District Public Defender                 Attorney General & Reporter

NATALEE S. HURLEY (at hearing)           CLINTON J. MORGAN
Assistant Dist. Public Defender          Asst. Attorney General
419 High St.                             425 Fifth Ave. North
Maryville, TN 37804                      2d Floor, Cordell Hull Bldg.
                                         Nashville, TN 37243-0493

                                         MICHAEL L. FLYNN
                                         District Attorney General

                                         EDWARD BAILEY
                                         Asst. District Attorney General
                                         363 Court St.
                                         Maryville, TN 37804


OPINION FILED:________________

AFFIRMED AS MODIFIED

CURWOOD WITT, JUDGE
                                     OPINION

              The defendant, Regina Ann Owen,1 appeals from the revocation of her

probationary sentence. She was convicted upon her guilty plea of attempting to

obtain a controlled substance by fraud, a Class D felony. She was sentenced to

serve one year on probation and ordered to pay court costs and probation fees.

After the one year had expired and the defendant had not paid all of her costs, the

court signed an agreed order extending probation for an additional year. Thereafter,

the defendant's probation officer filed a violation report alleging the defendant had

violated her probation by being convicted of a misdemeanor, using illegal drugs,

being in arrears on probation fees, and not making payments on the court costs.

Following a hearing at which the defendant was represented by counsel, the court

revoked the defendant's probationary status and ordered her to serve a minimum

of 30 days in the county jail, after which time she could obtain her freedom by

payment in full of court costs and probation fees and would have fully satisfied her

sentence. The defendant appeals from this adverse order, claiming the trial court

abused its discretion in (1) revoking her probationary status and (2) requiring her to

pay the costs and fees in order to obtain release despite her indigent status. On

review, we affirm the revocation but modify its terms.



              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). In order for an abuse of discretion to occur, the reviewing court must find

that the record contains no substantial evidence sufficient to support the conclusion

of the trial judge that the violation of the terms of probation has occurred. Harkins,

811 S.W.2d 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



       1
       The defendant's name appears in the record as "Regina Ann Owen,"
"Regina Owen," and "Regina Owens." We use the defendant's name as it
appears in the indictment.
preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1997). Upon a

finding of 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." Tenn. Code Ann. § 40-35-311(d)

(1997). 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 (1997). 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).



               In this case, the defendant admitted violation of the terms of probation.

This alone is substantial evidence of record to support the trial court's revocation

order. 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 neither arbitrary nor capricious);

see also State v. Mitzi Ann Boyd, No. 03C01-9508-CC-00246, slip op. at 3 (Tenn.

Crim. App., Knoxville, Nov. 1, 1996). There was evidence the defendant was

succeeding in drug rehabilitation after testing positive for illicit drugs on numerous

occasions several months earlier. Although she had violated the law during a

domestic disturbance, she believed her criminal activity resulted from the adverse

side effects of prescription medication.       However, the fact remains that the

defendant was given a favorable form of alternative sentencing and repeatedly

failed to abide by the rules imposed upon her. We cannot say the trial court abused

its discretion in revoking probation for the defendant's prohibited illicit drug use and

criminal activity.

               We find troubling, however, the aspect of the trial court's order which

finds violations for failure to pay costs and fines and imposes incarceration until

such monies are paid in full. The rule regarding revocation of probation for failure

                                           3
to pay fines and costs is that a court may not revoke until determining the underlying

reasons payment has not been made. Massey v. State, 929 S.W.2d 399, 402

(Tenn. Crim. App. 1996) (citing Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064

(1983)). If the nonpayment is due to willful refusal to pay or failure to make

sufficient bona fide efforts to obtain the means to pay, the probation may be

revoked. Massey, 929 S.W.2d at 402 (citation omitted); State v. Dye, 715 S.W.2d

36, 40, (Tenn. 1986) (citation omitted). If, on the other hand, the nonpayment

stems from the probationer's inability to pay, it may not form the basis for

imprisonment. Massey, 929 S.W.2d at 402 (citations omitted).



              In the case at bar, the court made no finding that the defendant's

failure to pay court costs and probation fees was due to willful refusal or failure to

make sufficient bona fide efforts to obtain the funds to pay. The evidence was that

she had paid $45 of the $372 owed for costs. The defendant's most recent

payment of $10 for court costs had been made in the month prior to the revocation

hearing. The amount owed for probation fees was not in evidence. The probation

officer testified some of the fees "have been reduced," although he did not specify

whether this reduction resulted from the defendant's payments or administrative

cancellation of amounts owed. The defendant testified she is employed in child

care, earning $140 to $150, "maybe a little bit more" per week. She lives alone, and

her rent and utilities are $125 per week. She receives assistance from her aunt in

paying the $66 per week for her drug rehabilitation program. The defendant

previously received Social Security Disability (SSDI) and Supplemental Security

Income (SSI) payments; however, those benefits had been terminated. According

to the probation officer, the defendant is going through an appeals process in hopes

of obtaining resumption of those benefits. The record does not reflect whether the

$300 to $448 per month that the defendant previously received in SSDI and SSI

benefits was in addition to or in the place of her current income from child care. The

                                          4
state adduced no evidence regarding the defendant's physical condition, mental

capabilities, education, transportation, and work experience -- factors which might

be illustrative of whether she was able to obtain more lucrative employment. Thus,

a finding of willful refusal or failure to make sufficient bona fide efforts to obtain the

means to reduce indebtedness for fees and costs would not be supported on this

record. The trial court erred in revoking the defendant's probation on the basis of

failure to pay the fees and costs without such a finding, although the revocation is

otherwise supported by the additional violations.



               Further, we find that the trial court should not have required the

defendant to "buy her way out of jail" absent a finding she had the means to satisfy

the indebtedness and willfully had not done so. We are therefore compelled to

modify the court's judgment to reflect that the defendant is to serve 30 days in jail

for her violations of probation.2 After that time, she is to be returned to probationary

status until the terms of her sentence are satisfied as they presently stand or are

modified by the court below.



                                             _______________________________
                                             CURWOOD WITT, JUDGE



CONCUR:




       2
        In cases where an indigent defendant is sentenced to probation
conditioned upon payment of fines, costs and/or fees, the trial court and/or the
supervisory authority may find it productive to inquire and determine an
appropriate payment schedule. Determination of a payment schedule makes it
clear to the probationer what is expected of him or her and allows for an orderly
reduction of the indebtedness. If the probationer willfully fails to abide by the
terms, he or she is subject to revocation of probation, and the court's inquiry is
simplified by the fact that it or the probation department, in conjunction with the
probationer, previously determined that the probationer is able to make the
payments specified in the schedule.


                                            5
_____________________________
PAUL G. SUMMERS, JUDGE



_____________________________
JERRY L. SMITH, JUDGE




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