            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                       FEBURARY 2000 Session
                    STATE OF TENNESSEE v. MICHAEL BYRD

                    Direct Appeal from the Circuit Court for Giles County
                             No. 7243    Jim T. Hamilton, Judge



                    No. M1999-00456-CCA-R3-CD- Filed August 31, 2000


On February 13, 1996, the appellant was convicted of attempted aggravated child abuse, a class C
felony, pursuant to his plea of nolo contendere in the Giles County Circuit Court. The trial court
imposed a sentence of six years incarceration in the Tennessee Department of Correction, suspending
the appellant’s sentence and ordering an equal term of participation in the local community
corrections program. On March 3, 1999, the trial court revoked the appellant’s community
corrections sentence, and the appellant now challenges the revocation and his consequent
incarceration in the Department of Correction. Following a review of the record and the parties’
briefs, we reverse the judgment of the trial court and remand this case for proceedings consistent
with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed and
Remanded.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES, J., AND
JERRY L. SMITH, J.J., joined.

Beverly J. White, Assistant District Public Defender, for the appellant, Michael Byrd.

Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, and
Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION
                The appellant, Michael Byrd, appeals the trial court’s revocation of his community
corrections sentence and his consequent incarceration in the Tennessee Department of Correction.
Specifically, the appellant contends that the trial court abused its discretion in revoking his
community corrections sentence on the bases of the appellant’s violation of his curfew and his failure
to maintain telephone service at his residence for purposes of electronic monitoring. Moreover, the
appellant contends that, to the extent the trial court revoked his alternative sentence on the basis of
his failure to maintain telephone service at his residence, he was denied the equal protection of the
laws. Following a review of the record and the parties’ briefs, we reverse the judgment of the trial
court and remand this case for proceedings consistent with this opinion.
                                                   I.
                 On February 13, 1996, the appellant was convicted of attempted aggravated child
abuse pursuant to his plea of nolo contendere in the Giles County Circuit Court. The trial court
imposed a sentence of six years incarceration in the Tennessee Department of Correction, suspending
the appellant’s sentence and imposing an equal period of participation in the local community
corrections program. On May 29, 1996, the trial court revoked the appellant’s community
corrections sentence due to threatening statements made by the appellant concerning an assistant
district attorney general who had prosecuted his case. However, on May 1, 1998, this court reversed
the trial court’s judgment and ordered the reinstatement of the appellant’s community corrections
sentence “under such additional terms and conditions as the trial court may require.” State v. Byrd,
No. 01C01-9609-CC-00411, 1998 WL 216859, at *10 (Tenn. Crim. App. at Nashville, May 1,
1998). In reversing the trial court’s judgment, this court concluded that, although the appellant’s
statements concerning the assistant district attorney general “are cause for serious concern, because
they reflect a lack of remorse for his crimes and raise doubts as to whether the defendant possesses
rehabilitative qualities,” the statements did not constitute a violation of specific conditions of the
community corrections program nor, generally, a violation of the laws of this state. Id. at **6-7.

                 On August 3, 1998, pursuant to this court’s mandate, the trial court reinstated the
appellant’s community corrections sentence and, in addition to requiring the appellant to follow all
of the rules set forth in his “behavioral contract” with the community corrections program, imposed
a curfew on the appellant and ordered the appellant to stay away from the victim in his case and the
assistant district attorney general who was the subject of his threatening statements. According to
the appellant’s community corrections case officer, Melanie Rice, the court “stressed that [the
appellant] needed to be supervised.”

                Subsequently, on January 14, 1999, the trial court issued another revocation warrant
on the basis of an affidavit by Ms. Rice alleging the appellant’s failure to abide by his curfew and
his failure to maintain an operational telephone at his residence for purposes of electronic
monitoring. The trial court conducted a revocation hearing on February 17, 1999.

                At the revocation hearing, testimony adduced by the State, including testimony by
Ms. Rice, officers of the Pulaski Police Department, and an employee of Favorite Market in Pulaski,
established that the appellant had violated his curfew by frequenting the Favorite Market both late
at night and during early morning hours. Indeed, testimony established that, on at least one occasion
in October 1998, the appellant lingered at the market from midnight until 3:00 a.m. On another
occasion in November 1998, the appellant stayed at the market from 3:00 a.m. until 6:45 a.m. The
appellant was ultimately barred from the market due to his persistent harassment of an employee.

                Ms. Rice also testified at the revocation hearing that the appellant’s behavioral
contract required that the appellant be electronically monitored, at a minimum, during the first ninety
days of his participation in the community corrections program. However, according to Ms. Rice,
the appellant did not fully cooperate in obtaining telephone service at his residence, which service
was necessary for electronic monitoring. Moreover, although the appellant finally installed an


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operational telephone in October 1998, his telephone service was disconnected on several occasions.
According to Ms. Rice, the appellant explained to her that, on at least one occasion, his telephone
service was disconnected due to his failure to pay his telephone bill. The appellant informed Ms.
Rice that he had made a van and a car payment instead. Ms. Rice acknowledged that, depending
upon individual case assessments, some participants in the community corrections program are
relieved of the requirement of electronic monitoring due to their limited financial resources.

               The appellant testified on his own behalf at the revocation hearing. He asserted that
Ms. Rice’s supervisor had granted him permission to violate his curfew in order to maintain two
jobs. Although he admitted visiting the Favorite Market after his curfew, he asserted that he only
stopped at the market en route to work or as he was returning home from work. Moreover, the
appellant claimed that he generally only stayed at the market for “a half hour or so.” The appellant
conceded that, on one occasion, he may have lingered at the market for one and one half hours.

                The appellant further testified that, upon the reinstatement of his community
corrections sentence, he was unable to immediately obtain telephone service at his residence, because
he was “broke,” he owed several unpaid bills, and the trailer in which he was living “had to be wired
for a telephone and all the lines put in.” The appellant confirmed that he obtained telephone service
in October 1998, but, in contrast to Ms. Rice’s testimony, he asserted that his service was only
disconnected on one occasion in December 1998 due to the loss of his primary employment and his
consequent failure to pay his telephone bill.

                 Following the revocation hearing, on March 3, 1999, the trial court revoked the
appellant’s community corrections sentence and ordered the appellant’s incarceration in the
Department. In revoking the appellant’s alternative sentence, the trial court neglected to make any
oral or written findings of fact stating the evidence relied upon and the reasons underlying the court’s
decision.

                                                 II.
               Initially, we note that revocation procedures for probationary sentences and
community corrections sentences are similar. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
See also State v. Cousett, No. W1999-01256-CCA-R3-CD, 2000 WL 205055, at **1-2 (Tenn.
Crim. App. at Jackson, February 10, 2000). Compare State v. Taylor, 992 S.W.2d 941, 945
(Tenn. 1999). Thus, a trial court may revoke a defendant’s community corrections sentence
whenever it finds that a defendant has violated the conditions of his sentence. Harkins, 811
S.W.2d at 82 (citing Tenn. Code Ann. § 40-35-311(d)). See also Tenn. Code Ann. §
40-36-106(e)(4) (1998 Supp.). In determining whether or not to order revocation, the trial judge
need not find beyond a reasonable doubt that a violation has occurred. Rather, the existence of a
violation need only be supported by a preponderance of the evidence. Id. Upon revocation, the
court may order a defendant to serve his sentence in confinement. Id.

               On appeal, this court will not reverse the judgment of the trial court absent an
abuse of discretion, reflected in the record by an absence of substantial evidence to support the


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trial judge’s findings. Id. This court's review of the evidence does not encompass an evaluation
of the credibility of the witnesses at the revocation hearing. The trial judge determines the
credibility of witnesses. Cf. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.1991).
See State v. Hudson, No. 01C01-9310-CR-00335, 1994 WL 142730, at *2 (Tenn. Crim. App. at
Nashville, April 21, 1994). That having been said, a trial judge’s failure to make oral or written
findings of fact denies a defendant due process of law and requires the reversal of any revocation
and a remand of a defendant’s case to the trial court for the entry of appropriate findings. Cf.
State v. Weaver, No. 03C01-9607-CR-00269, 1998 WL 19935, at *3 (Tenn. Crim. App. at
Knoxville, January 22, 1998).

                Again, in the instant case, the trial court failed to make the requisite findings of
fact. Accordingly, we reverse the judgment of the trial court and remand this case for
proceedings consistent with this opinion. Although the appellant correctly states and it was
undisputed at the revocation hearing that he had received permission from Ms. Rice’s supervisor
to violate his curfew in order to maintain his employment, this authorization did not encompass
prolonged visits to Favorite Market. However, if the trial court intends to rely upon the
appellant’s failure to maintain telephone service at his residence, the trial court should make
specific findings concerning the appellant’s financial ability to maintain such service. Cf. State
v. Dye, 715 S.W.2d 36, 39-41 (Tenn. 1986)(citing Bearden v. Georgia, 461 U.S. 660, 665-668,
672-674, 103 S.Ct. 2064, 2069-2070, 2073-2074 (1983)). If the appellant wilfully refused to pay
for the telephone service or failed to make bona fide efforts to obtain the means to pay, then the
trial court may revoke the community corrections sentence and order the appellant’s
incarceration. Id. If instead the appellant was unable to pay through no fault of his own, his
inability may not form the basis for incarceration unless alternative measures other than
incarceration are inadequate to meet the State’s need for punishment and deterrence. Id.

                                                III.
                For the foregoing reasons, we reverse the judgment of the trial court and remand
this case for proceedings consistent with this opinion.




                                              NORMA McGEE OGLE, JUDGE




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