        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 5, 2011

               STATE OF TENNESSEE v. LISA JOYCE TYLER

             Direct Appeal from the Circuit Court for Hardeman County
                     No. 07-01-0517    J. Weber McCraw, Judge


                No. W2010-01229-CCA-R3-CD - Filed March 23, 2011


The defendant, Lisa Joyce Tyler, appeals the trial court’s revocation of her probation. On
appeal, she argues that the non-payment of her restitution was not willful but, instead, due
to her inability to pay. After review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and C AMILLE
R. M CM ULLEN, JJ., joined.

Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Gary Antrican, District Public
Defender; and Shana Johnson, Assistant Public Defender (at trial), for the appellant, Lisa
Joyce Tyler.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; D. Michael Dunavant, District Attorney General; and Joe Van Dyke,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

        In October 2007, the defendant pled guilty to theft of property from Bolivar Ford-
Mercury valued between $10,000 and $60,000 in exchange for an agreed-upon sentence of
four years in the Department of Correction, with all but thirty-one days suspended to
probation. She was also ordered to pay restitution in the amount of $12,500 at the agreed
rate of $285 a month. A probation violation warrant was filed on October 29, 2008, alleging
that the defendant had not made restitution payments, had not submitted a DNA sample, and
had attempted to commit suicide. On December 1, 2008, the defendant admitted the alleged
violations, and her probation was extended for two more years and her restitution payments
were modified to an agreed rate of $185 a month. Thereafter, on March 2, 2010, a second
probation violation warrant was issued, alleging the defendant had failed to make any
payments toward restitution. The court held a hearing, after which it revoked the
defendant’s probation and ordered that she serve the balance of her sentence.

        At the revocation hearing, the defendant stipulated to her non-payment of restitution
and admitted that it was her second violation for non-payment. The defendant testified that
she had originally agreed to pay $285 a month. However, she only receives $674 a month
in social security benefits and has to pay $425 in monthly rent. She is also responsible for
her utility bill, which averages $150 a month. The defendant said that she does not have to
pay for groceries out of her monthly income because she receives food stamps, and she owns
a 1992 Ford Taurus automobile. The defendant testified that she did not begin receiving
social security benefits until after she pled guilty in this case and explained that she receives
the benefits because she has mental health issues.

       The defendant testified that she was not able to pay the original agreed-upon $285
a month in restitution. The court observed that the restitution was modified to an agreed-
upon $185 a month after a previous probation violation, but the defendant said that she had
not been able to pay that amount either. The defendant stated that she was not able to work
because of her mental health issues, for which she takes medication and sees a counselor.
The defendant said that she was not willfully failing to pay restitution and that she would
consistently be able to pay $120 a month. At the time of the second revocation hearing, the
defendant was under a doctor’s care for a recent surgery.

        On cross-examination, the defendant testified that she had “paid consistently for a
year because [the amount owed] was thirteen.” She admitted that the amount she currently
owed indicated that she had only paid $3001 toward her restitution in three years and
explained that she “do[es] the best [she] can do.” The defendant acknowledged that even
after her restitution was lowered to $185 a month, she did not have the money to pay toward
it on one occasion.

       On questioning by the court, the defendant clarified that she had been receiving social
security benefits prior to the offense. However, she lost them when she was incarcerated but
started receiving them again when she was released. The defendant explained that she
thought she would be able to pay $120 a month because her rent payment had been reduced
to facilitate her being able to make restitution. Asked why she had not been making

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           Defense counsel later informed the court that the clerk’s office showed that the defendant had paid
a total of $743.50.

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payments of $120 up until that point if she felt that she could pay that amount going
forward, the defendant said, “I don’t know.”

                                         ANALYSIS

       The defendant argues that the trial court erred in revoking her probation because she
did not willfully violate the terms of her probation; instead, her failure to comply was based
on her inability to do so.

        A trial court is granted broad authority to revoke a suspended sentence and to reinstate
the original sentence if it finds by the preponderance of the evidence that the defendant has
violated the terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§
40-35-310, -311. When the defendant’s violation of probation is based on failure to pay
restitution or fines, the trial court must determine the reasons behind the failure to pay. State
v. Dye, 715 S.W.2d 36, 40 (Tenn. 1986). If the court finds the nonpayment results from
either the defendant’s willful refusal to pay or failure to make bona fide efforts to obtain the
means to pay, the defendant’s probation may be revoked. Id.

         The revocation of probation lies within the sound discretion of the trial court. State
v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997); State v.
Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse of discretion in
a probation revocation case, “a defendant must demonstrate ‘that the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the
conditions of probation has occurred.’” State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App.
1994) (quoting State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). The proof of
a probation violation need not be established beyond a reasonable doubt, but it is sufficient
if it allows the trial court to make a conscientious and intelligent judgment. Harkins, 811
S.W.2d at 82 (citing State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)).

       In revoking the defendant’s probation, the trial court observed that the defendant had
previously agreed to pay two other monthly amounts and should have been mindful of her
income limitations before saying she could pay those amounts. The court surmised that it did
not know how it could have been more reasonable in determining a fair amount other than
how it did by asking the defendant to agree to an amount. The court noted that even though
the defendant now said she could pay $120 a month, she had yet to make payments in that
amount toward her restitution. The court found that the defendant had the ability to pay some
amount of restitution but had willfully failed to do so, thus violating the terms and conditions
of her probation.



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        The record shows that over a two-and-a-half-year period, the defendant paid an
extremely minimal amount toward her restitution, and this was her second probation violation
for failure to pay. After the first violation, the court lowered the monthly amount to an
amount the defendant claimed she could pay, yet the defendant failed to pay that amount
even once. Although the defendant claimed that she was now able to pay $120 a month, she
had never made that level of payment up to that point. Given this evidence, we cannot
conclude that the trial court abused its discretion in finding that the defendant’s failure to pay
restitution was willful.

                                       CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the trial court’s
revocation of the defendant’s probation.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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