          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE          FILED
                             MAY 1997 SESSION
                                                        July 25, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )
             Appellee,              )     C.C.A. No. 03C01-9608-CR-00314
                                    )
vs.                                 )     Knox County
                                    )
YVONNE BURNETTE, ALIAS,             )     Honorable Ray L. Jenkins, Judge
                                    )
             Appellant.             )     (Probation Revocation)
                                    )



FOR THE APPELLANT:                        FOR THE APPELLEE:

MARK E. STEPHENS                          JOHN KNOX WALKUP
District Public Defender                  Attorney General & Reporter

PAULA R. VOSS (Appeal)                    GEORGIA BLYTHE FELNER
DAVID GALL (Hearing)                      Assistant Attorney General
Assistant Public Defenders                Criminal Justice Division
1209 Euclid Avenue                        450 James Robertson Parkway
Knoxville, TN 37921                       Nashville, TN 37243-0493

                                          RANDALL E. NICHOLS
                                          District Attorney General

                                          LEON FRANKS
                                          Asst. District Attorney General
                                          P.O. Box 1468
                                          Knoxville, TN 37901-1468


OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                      OPINION

              The appellant, Yvonne Burnette, appeals the Knox County Criminal

Court's revocation of her probationary sentence. As a result of the probation

revocation, she is currently serving her 8 year sentence for sale of cocaine, a Class

B felony, in custody of the Department of Correction. In this appeal, she contends

the trial court abused its discretion in revoking her probation. Having reviewed the

record of the proceedings below, we find no reversible error and affirm the judgment

of the lower court.



              The appellant was convicted of sale of cocaine following her guilty

plea on January 5, 1994. On March 30, 1994, she was given a sentence of 8 years

in the Department of Correction, suspended in favor of probation. A fine and court

costs were assessed. On January 31, 1995, a probation violation warrant was

issued for the appellant based on her alleged failure to make payments toward her

court costs and to comply with community service requirements. Counsel was

appointed. The Knox County Criminal Court thereafter dismissed the warrant,

apparently after the appellant furnished proof of a medical condition excusing her

failure to comply with the terms of probation. A second warrant was issued on

February 15, 1996, this time alleging the appellant had broken several rules of

probation, including failing to obey the law (having been arrested for DUI, failure to

appear and criminal trespass), falsely representing that she had not had any contact

with law enforcement officers, failing to report to her probation officer as instructed,

using intoxicants to excess, and failing to pay probation fees.          Counsel was

appointed, and the matter came on for hearing on March 22, 1996.



              At the probation revocation hearing, the state presented evidence of

DUI and criminal trespass convictions the appellant received since beginning her

probationary term, her failure to report multiple new criminal charges since being

placed on probation, her false statements that she had not had contact with law

enforcement officers, the difficulties the probation officers had in getting her to



                                           2
report twice a month, her failure to pay the funds owed, and her failure to report a

change of address.1 The appellant admitted she had violated the terms of her

probation by committing other crimes; however, she generally denied the other

allegations. She testified she did not understand she had to report any subsequent

charges unless she ultimately received a conviction, she was never told she had to

report to her probation officer more than once a month, she had not moved from the

address given the probation officer, and she had been unable to pay court costs

because she had undergone surgery. The appellant acknowledged she had not

complied with all of the terms of probation and asked the court for a second chance.

The trial court revoked probation, reasoning, "There is a point at which the patience

and understanding of the trial court is exhausted, and we've reached it in this case.

Let the probation be revoked, required to serve the complete sentence."



              In her appeal, the appellant pleads for a second chance at a non-

incarcerative sentence due to her family obligations and substance abuse

problems,2 notwithstanding her admitted violation of the terms of probation. In that

vein, she urges us to consider the objectives of the Criminal Code and the

Sentencing Act and impose a measure less severe than incarceration, such as

more stringent terms of probation.



              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).



       1
       The appellant's alleged failure to notify her probation officer of a change
of address was not alleged in the warrant.
       2
        The record is devoid of proof of any substance abuse problem other than
the fact that the appellant had been convicted of sale of cocaine and DUI. The
issue of the appellant's "problems with drugs and alcohol" is raised only in the
appellant's brief.

                                          3
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(d) (Supp. 1996).

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) (Supp. 1996). 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 (1990). 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 defendant admitted violation of the terms of probation. This 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 not arbitrary or capricious); see

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

Crim. App., Knoxville, Nov. 1, 1996). The lower court was statutorily authorized

to impose the original sentence upon revocation of probation. See Tenn. Code

Ann. § 40-35-310 (1990). Contrary to the appellant's assertion, we are not

required at this stage to reconsider the sentencing principles. State v. Howard

Luroy Williamson, Jr., No. 02C01-9507-CC-00201, slip op. at 4 (Tenn. Crim

App., Jackson, Sept. 30, 1996) (citation omitted). We note that the appellant has

made minimal efforts, at best, to comply with the terms of probation and

rehabilitate herself. Based on her track record, she gave the trial court no

reason to believe her performance would improve.3 We cannot say the trial court


         3
       Particularly, we note that the appellant's medical excuse from her treating
physician excused her from work for four to six months from March 10, 1995.
The revocation hearing was held on March 22, 1996. The uncontradicted
evidence at that time was that the appellant had neither performed any of her
community service requirement nor paid her probation fees. She furnished the

                                           4
abused its discretion in ordering the appellant to serve the terms of her original

sentence, that is, eight years in the Department of Correction.



              In reaching this conclusion, we do not disregard the appellant's

arguments that the lower court relied on inappropriate authority as the basis for

revoking probation4 and failed to make findings of fact on the record.5 Those

issues are not dispositive of this appeal.



              The judgment of the lower court is affirmed.




court with no additional medical documentation and provided no excuse for her
behavior other than that she had been unable to work at the time of the previous
revocation hearing because she had undergone three surgeries. Additionally,
the appellant did not contradict the probation officer's testimony that she "has to
be begged to come in to report" and shows up only when warned of her last
chance to report.
       4
         The court announced at the conclusion of the hearing it had "considered
all the elements required to be considered in the Stiller case, without
enumeration." This is likely a reference to Stiller v. State, 516 S.W.2d 617
(Tenn. 1974), which deals with the defendant's right to appeal a denial of
probation at the time of sentencing. Although Stiller is not controlling of the issue
that was before the lower court, the court's inapt citation to that case is harmless
error. Tenn. R. App. P. 36(b); Tenn. R. Crim. P. 52(a).
       5
         Due process requires the court conducting the probation revocation
hearing to make findings of fact. Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct.
1756 (1973); Delp, 614 S.W.2d at 397. In this case, the revocation order
contains findings of fact that "the defendant has been guilty of violating the laws
of this State, and has otherwise violated the conditions of her probation." While
a more specific enumeration of how the appellant "otherwise violated the
conditions of her probation" is preferable, any arguable deficiency is not
prejudicial to the appellant in light of the specific finding she violated the laws of
the state, which itself is a sufficient ground for revocation. Tenn. R. App. P.
36(b); Tenn. R. Crim. P. 52(a); see State v. Milton, 673 S.W.2d 555, 557 (Tenn.
Crim. App. 1984) (probationer who was not prejudiced by procedural deficiencies
at revocation hearing not entitled to reversal).

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                                  _______________________________
                                  CURWOOD WITT, JUDGE




CONCUR:




_______________________________
JOSEPH B. JONES, PRESIDING JUDGE




_______________________________
JOSEPH M. TIPTON, JUDGE




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