          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

                            MARCH 1997 SESSION
                                                      FILED
                                                         April 30, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

TIMOTHY ANDERSON,                )   C.C.A. No. 03C01-9606-CC-00245
                                 )   GREENE COUNTY
             Appellant,          )
                                 )   Hon. James E. Beckner, Judge
VS.                              )
                                 )   (PROBATION VIOLATION)
STATE OF TENNESSEE,              )   Nos. 9694, 9695, 9706 BELOW
                                 )
             Appellee.           )




FOR THE APPELLANT:                   FOR THE APPELLEE:

MICHAEL A. WALCHER                   JOHN KNOX WALKUP
Office of the Public Defender        Attorney General and Reporter
1609 College Park Drive
Box 11                               MICHAEL J. FAHEY, II
Morristown, TN 37813-1618            Assistant Attorney General
                                     450 James Robertson Parkway
                                     Nashville, TN 37243-0493


                                     C. BERKELEY BELL, JR.
                                     District Attorney General
                                     109 S. Main Street
                                     Suite 501
                                     Greeneville, TN 37743

                                     JOHN F. DUGGER, JR.
                                     Assistant District Attorney General
                                     Hamblen County Justice Center
                                     510 Allison Street
                                     Morristown, TN 37814



OPINION FILED:__________________


AFFIRMED



CORNELIA A. CLARK,
Special Judge
                                      OPINION


       In this appeal the appellant contends that the trial court abused its discretion

in revoking the defendant’s probation and in requiring incarceration when the

revocation was based on his inability to pay costs. We disagree and therefore

affirm the decision of the lower court.



       In May 1990 the appellant entered guilty pleas to three counts of sale of

cocaine, a Schedule II controlled substance. On each count he was sentenced as

a Range I standard offender to five years and was required to pay a $3,000.00 fine.

The sentences were run concurrently to one another.



       Pursuant to T.C.A. §40-20-206, on October 22, 1990, defendant was placed

on probation by the Department of Correction for the remainder of his sentence. In

June 1992 a probation violation warrant was issued against appellant, charging him

with having received new charges, using intoxicants to excess, and failing to pay

restitution and fines. By order entered August 27, 1992, appellant’s probation was

revoked. By order entered September 15, 1992, appellant was ordered to serve his

sentence at the John R. Hay House Community Corrections Program following

alcohol and drug treatment at another facility. By order entered March 31, 1993,

defendant’s probation was reinstated with an extended expiration date of April 23,

1995, subject to his obligation to pay restitution, fines, and costs on a monthly

schedule.



       On April 11, 1995, a show cause order was issued for appellant’s failure to

pay the restitution ordered in his probation agreement. By order entered April 17,

1995, appellant’s probation was revoked, then reinstated and extended for one

year, with a specific condition that he pay the costs, fines and jail fees at the rate

of $100.00 per month.




                                          2
       On September 22, 1995, a probation revocation warrant was issued for

appellant alleging that he failed to pay costs, fines and jail fees according to the

previously-entered order. A probation revocation hearing was held November 15,

1995. Appellant, represented by counsel, appeared at that hearing. He testified

that he had no physical or health problems that prevented his employment. He had

held a number of jobs during the various times he was on probation. Over a

five-year period he had paid only $10.00 into the court. At the conclusion of the

hearing, the court revoked the appellant’s probation and ordered him to serve the

remainder of his sentence in confinement.



       The petitioner cites Bearden v. Georgia, 461 U.S. 660, 76 L.Ed.2d 221, 103

S.Ct. 2064, 76 L.Ed.2d 221 (1983) in support of his position that his probation

revocation was unlawful. However, his reasoning is misguided. Under Bearden, a

court may not revoke a defendant’s probation for failing to pay fines and costs until

it has determined the underlying reason for nonpayment.              Id. at 672. If the

nonpayment is willful, probation may properly be revoked. Id. However, if the

nonpayment is due to an inability to pay, the court may not imprison the defendant.

Massey v. State, 929 S.W.2d 399, 402 (Tenn. Crim. App. 1996).



       It is appellant’s position that his failure to pay restitution, fines and costs was

not a willful one.     The record does not support that position.              Appellant

acknowledged that he had no physical problems which made it difficult to work. He

had been employed in a number of part-time or full-time positions over the several

years of probation. However, not only had he failed to pay the agreed-upon monthly

amount of restitution during that period, he actually had paid a total of only $10.00

into court.




                                           3
       Under the facts and circumstances found in this record, we are in full accord

with the findings of the trial court. The court did not act arbitrarily or abuse its

discretion in revoking the probation of the appellant and requiring him to serve the

remainder of his sentence. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State

v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). The judgment of the

trial court is affirmed.



                                          __________________________________
                                          CORNELIA A. CLARK
                                          SPECIAL JUDGE




CONCUR:


__________________________________
JOHN H. PEAY
JUDGE


__________________________________
PAUL G. SUMMERS
JUDGE




                                         4
    IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE




TIMOTHY ANDERSON,                    )       C.C.A. No. 03C01-9606-CC-00245
                                     )       GREENE COUNTY
               Appellant,            )
                                     )       Hon. James E. Beckner, Judge
VS.                                  )
                                     )       (PROBATION VIOLATION)
STATE OF TENNESSEE,                  )       Nos. 9694, 9695, 9706 BELOW
                                     )
               Appellee.             )




                                      JUDGMENT



       Came the appellant, Timothy Anderson, by counsel and also came the
attorney general on behalf of the state, and this case was heard on the record on
appeal from the Criminal Court of Greene County; and upon consideration thereof,
this court is of the opinion that there is no reversible error in the judgment of the trial
court.

       Our opinion is hereby incorporated in this judgment as if set out verbatim.

        It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of Greene
County for execution of the judgment of that court and for collection of costs
accrued below.

      It appears that the appellant is indigent. Costs of this appeal will be paid by
the appellant.


                                             PER CURIAM

                                             John H. Peay, Judge
                                             Paul G. Summers, Judge
                                             Cornelia A. Clark, Special Judge
