        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 10, 2012

                 STATE OF TENNESSEE v. TRAVIS VAUGHN

                Direct Appeal from the Circuit Court for Dyer County
                         No. 09CR179      Lee Moore, Judge


                No. W2011-01707-CCA-R3-CD - Filed August 27, 2012




The defendant, Travis Vaughn, appeals the decision of the Dyer County Circuit Court
revoking his probationary sentence. The defendant pled guilty in the Dyer County Circuit
Court to three counts of non-support of a minor child and received three consecutive
sentences of eleven months and twenty-nine days, all suspended to probation but for thirty
days. Thereafter, a violation report was filed charging the defendant with multiple violations
of the terms and conditions of his probation. Following a hearing, the trial court revoked the
defendant’s probation and ordered him to serve the remainder of his sentence in
incarceration. On appeal, the defendant contends: (1) that the trial court lacked jurisdiction
to revoke his probation as the case was not properly commenced; and (2) that the
determination to revoke was error as it conflicts with public policy. Following review of the
record, we find no error and affirm the revocation of probation.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and A LAN E. G LENN, JJ., joined.

James E. Lanier, District Public Defender, and Howell Tod Taylor, Assistant Public
Defender, for the appellant, Travis Vaughn.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Karen W. Burns, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                                     Procedural History




        On April 13, 2010, the defendant pled guilty, in two separate cases, to three counts
of non-support of a minor child. As part of the agreement, he was sentenced to three terms
of eleven months and twenty-nine days. The sentences were ordered to be served
consecutively and, further, to be suspended following the service of thirty days in jail. As
part of the terms of probation, the defendant was ordered to pay $77 per month toward his
child support as restitution.

        On October 22, 2010, a probation violation report was issued noting several
infractions of the terms of the defendant’s probationary agreement. The report, however, was
not file-stamped until November 2. On October 26, 2010, the trial court issued a violation
warrant, which was executed on November 22, 2010. The warrant is contained in the instant
record, although it bears no file-stamp mark. In December 2010, a follow-up violation report
was issued. Although not contained in the record before us, there is some indication that a
third report was filed in April.

        A probation violation hearing was held before the trial court on May 17, 2011. The
first witness called was Justin Tubbs with the Board of Probation and Parole. He supervised
the defendant and issued the violation reports in this case. In the first report, Mr. Tubbs
noted that: (1) the defendant was arrested for crack cocaine possession on September 29,
2010; (2) the defendant failed to report that arrest to him; (3) on August 18, 2010, the
defendant tested positive for marijuana use; and (4) the defendant had not paid restitution and
costs as ordered by the court.

        Mr. Tubbs indicated that he filed a follow-up violation report in December 2010,
which alleged that: (1) the defendant pled guilty to the possession charge and was sentenced
to a suspended sentence of eleven months and twenty-nine days; and (2) the defendant also
pled guilty to driving on a revoked license, third offense, and violating the terms of his
community corrections sentence in another jurisdiction. Mr. Tubbs further indicated that in
April, 2011, he issued a third report because the defendant had failed to report from
November 2010 until April of 2011.

        The defendant also testified at the hearing. He testified that he had now obtained
employment and had made an attempt to ensure that his wages would be garnished in order
to pay his child support debt. With regard to his possession charge and conviction, the
defendant admitted the validity of his conviction. He testified that he did not report the arrest
to his probation officer because he had given the arresting officer his probation card and was

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present when that officer called Mr. Tubbs. The defendant further acknowledged his guilty
pleas to driving on a revoked license and violation of community corrections. With regard
to his failure to pay restitution and costs as ordered by the court, the defendant produced
records indicating that he had made three payments towards his balance, although all
occurred after the violation proceedings had been initiated. On March 8, he made two
payments totaling $575. On April 1, he made a payment of $77, which was the payment
amount ordered by the court. However, the defendant indicated that he had not made a
payment in May because his hours had been reduced at his job. Finally, the defendant did
not dispute that he had failed to report to his probation officer after he was shown the initial
violation report in November. He indicated that he had returned to meet with Mr. Tubbs in
April at the suggestion of his attorney in the instant case.

      After hearing the evidence presented, the trial court revoked the defendant’s probation
and ordered that he serve the balance of his sentence in incarceration. Thereafter, the
defendant filed timely notice of appeal with this court.

                                           Analysis

       On appeal, the defendant raises a two-part argument with regard to the revocation of
his probation. First, he contends that the trial court lacked jurisdiction to revoke his
probation “because the warrant that commenced the probation revocation proceeding was
never filed and as such was never properly issued,” resulting in the case not being
“commenced properly by law.” Further, he contends that the trial court “did not exercise
conscientious and intelligent judgment in revoking defendant’s probation in full” because
the decision is in conflict with public policy.

I. Jurisdiction

       The defendant challenges the trial court’s jurisdiction in this case. He asserts that the
cause was not properly commenced, thus depriving the court of jurisdiction to revoke the
probationary sentence. We are unable to find any previous case which made this specific
argument in Tennessee. The law cited by both the defendant and the State comes from cases
in which the defendant contended that the court lacked jurisdiction to revoke probation
because the sentence had already expired. We, nonetheless, find it illustrative in the instant
case.

       A trial court’s authority to revoke a suspended sentence is derived from Tennessee
Code Annotated section 40-35-310 (2010), which provides that the trial court possesses the
power “at any time within the maximum time which was directed and ordered by the court
for such suspension, . . . to revoke . . . such suspension” and cause the original judgment to

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be put into effect. While normally revocation or extension of a defendant’s probation may
only occur within the probationary period, our supreme court has held that “[t]he running of
a defendant’s probationary period may, however, be interrupted by the issuance of a
revocation warrant.” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001). The court in Shaffer
continued:

               If the probation revocation warrant issued, within the term of the
       sentence, the issuance of the warrant commences the revocation proceedings
       and thereby interrupts the running of the probationary period “until such time
       as the trial court [may] hear and determine the issue raised by the [warrant].”
       McGuire v. State, 200 Tenn. 315, 292 S.W.2d 190, 193 (Tenn. 1956). The
       interruption of the probationary period is triggered by the issuance of the
       probation revocation warrant and not by service of the warrant on the
       defendant. Allen v. State, 505 S.W.2d 715, 717 (Tenn. 1974).

Id. (emphasis added).

        There is no dispute in this case that violation warrant does not contain a typical file-
stamp by the clerk. Nor is it disputed that the warrant does bear a case number, a recitation
of the alleged probation violations, a date on which the defendant was to appear in court, and
a signature by the trial judge on October 26, 2010. Further, it is clear from the record that
the warrant was executed on November 22, 2010, when the defendant was taken into
custody. Additionally, it is stamped as page “000010” as part of the appellate record, which
has been certified by Clerk of the Circuit Court for Dyer Court. The question before us now
is whether this is sufficient to establish “issuance” of the warrant.

        We agree that some opinions written by this court have generally equated “issuance”
with “filing.” See State v. Anthony, 109 S.W.3d 377, 381 (Tenn. Crim. App. 2001); Shanna
Dean Alder, No. E2002-00287-CCA-R3-PC (Tenn. Crim. App., at Knoxville, Aug. 28,
2002). In the normal course of a probation revocation proceeding, that would be true. The
warrant would be completed by the court and then file-stamped. However, in this case, the
stamp was never affixed to the document. Nonetheless, on this record, we conclude that the
warrant was in fact “issued” and, in all likelihood, was “filed.” “Issue” has been defined as
“to put into circulation; to send out . . . .” Steven H. Gifis, Law Dictionary, 110 (1975).
Clearly, the warrant in this case was “put into circulation,” as it was executed. Moreover,
we fail to see how it was possible that the warrant worked its way through the system, absent
an actual filing. It was sent to the Clerk’s office, made its way to an officer, was executed,
returned, and made its way into the court record. Through some clerical error, the copy
before us was not file-stamped. That error does not preclude a finding that it was issued by
the trial court. “A warrant of arrest is an order, in writing, stating the substance of the

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complaint, directed to a proper officer, signed by a magistrate, and commending the arrest
of the defendant.” T.C.A. § 40-6-201. Such a document was issued in this case, thereby
properly commencing prosecution and granting the trial court jurisdiction.

II. Revocation of Probation

        The defendant next contends that the trial court “did not exercise conscientious and
intelligent judgment in revoking defendant’s probation in full.” A trial court may revoke
probation and order the imposition of the original sentence upon a finding by a
preponderance of the evidence that the defendant has violated a condition of his or her
probation. T.C.A. §§ 40-35-310, -311(e). Probation revocation rests within the sound
discretion of the trial court. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005)
(citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991)). To establish an
abuse of discretion, the defendant must show that there is no substantial evidence in the
record to support the trial court’s determination regarding the probation violation. Id. Proof
of a violation does not need to be established beyond a reasonable doubt. State v. Milton,
673 S.W.2d 555, 557 (Tenn. Crim. App. 1984). Rather, if the trial court finds by a
preponderance of the evidence that a violation has occurred, the court may revoke the
probation and suspension of the sentence. T.C.A. § 40-35-311(e). In a probation revocation
hearing, the credibility of witnesses is to be determined by the trial court. Mitchell, 810
S.W.2d at 735.

       Once the trial court has determined a violation of probation has occurred, it retains
discretionary authority to order the defendant to: (1) serve his sentence in incarceration; (2)
serve the probationary term, beginning anew; or (3) serve a probationary period that is
extended for up to an additional two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999);
see also T.C.A. § 40-35-310(b). The determination of the proper consequence of the
probation violation embodies a separate exercise of discretion. Hunter, 1 S.W.3d at 647.

         The argument put forth by the defendant is based strictly upon public policy. By his
own admission, the defendant established that he did in fact violate the terms of his probation
by possessing crack cocaine, driving on a revoked license, testing positive for marijuana, and
failing to pay restitution. That is not in dispute, thereby establishing on appeal that there was
substantial evidence in the record to support the trial court’s determination that violations
occurred. Rather, the defendant contends that the court erred because the determination went
against the public policy of the State to see that children are supported by their parents. He
argues that the decision to revoke rather than “trying an alternative via additional conditions
to . . . probation . . . was a mistake in judgment.” He contends that “public policy should
have dictated some form of alternative probationary measures instead of a full revocation.”



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        While we agree that public policy does encourage parents to support their children,
we know of no authority, and the defendant points to none, which carves out an exception
to probation revocation for people convicted of the crime of non-support of a minor child.
That is essentially what the defendant is asking us to do. What his argument fails to take into
account, however, is that he has already been given the chance to succeed on probation by
supporting his children and has failed to do so. The trial court stated:

       [Y]ou made a point the point being that it is better that he be out and working
       and [pay] child support, I agree. He’s got money to buy marijuana, he’s got
       money to buy crack cocaine, but he doesn’t have enough money to keep his
       child support up. I’m just really very unsympathetic with his plight when he
       was offered help back last August and he refused it and now he is asking for
       help.

We agree with the trial court. While the best solution would be for this type of offender to
remain on probation and support his minor children, it oftentimes does not occur. To allow
continual violations without revocation would make a mockery of the judicial system, as well
as allowing preferential treatment for those who have violated the law in a certain manner.
That is not a proper resolution, despite the public policy to support children.

       The record before us is replete with evidence of the violations, including admissions
by the defendant. Once a violation has been established by a preponderance of the evidence,
the court is then authorized to revoke the probation and order a sentence of incarceration.
On this record, we conclude that the defendant has failed to establish that the decision to
revoke his probation was an abuse of discretion. He is entitled to no relief.

                                      CONCLUSION

       Based upon the foregoing, the revocation of probation and resulting sentence of
incarceration is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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