        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                    June 2, 2004 Session

                   STATE OF TENNESSEE v. DONNIE MOORE

                  Direct Appeal from the Circuit Court for Carroll County
                          No. 03cr-81   C. Creed McGinley, Judge



                     No. W2003-01581-CCA-R3-CD - Filed July 12, 2004


The Appellant, Donnie Moore, appeals from the ruling of the Carroll County Circuit Court, which
found that Moore violated the conditions of probation imposed by the Carroll County General
Sessions Court. Following a hearing, the general sessions court partially revoked Moore’s probation
and ordered him to serve ninety days in jail. Moore appealed to the Carroll County Circuit Court.
The circuit court agreed that Moore had violated the terms of his probation and remanded the case
to the general sessions court for enforcement of the sentence. On appeal, Moore argues that the
circuit court erred by failing to conduct a de novo review of the sentence imposed by the general
sessions court and that his sentence was the result of vindictive prosecution. Because the circuit
court failed to review Moore’s sentence following revocation of his probation, we remand the case
to the circuit court for that limited purpose.

     Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed in Part; Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which DAVID H. WELLES and ROBERT W.
WEDEMEYER, J.J., joined.

Benjamin S. Dempsey, Huntingdon, Tennessee, for the Appellant, Donnie Moore.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Michael
Markham, Assistant Attorney General; Robert "Gus" Radford, District Attorney General; and
Eleanor Cahill, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                           OPINION

                                      Factual Background

        On May 9, 2002, the Appellant was placed on probation for eleven months and twenty-nine
days by the Carroll County General Sessions Court after he pled guilty to misdemeanor possession
of schedule IV drugs and drug paraphernalia. On March 6, 2003, a probation violation warrant was
issued, alleging that the Appellant had been arrested for new drug charges and driving offenses. On
April 3, 2003, the Carroll County General Sessions Court entered an order partially revoking the
Appellant’s probation and ordering him to serve ninety days in jail, after which his probation was
to be reinstated. The Appellant appealed this order to the Carroll County Circuit Court.

        On May 12, 2003, a hearing was held in the circuit court. The Appellant’s probation officer,
Laurie Scott, testified that, while the Appellant was serving his sentence of probation, he pled guilty
to driving on a revoked license and possession of schedule II drugs, schedule IV drugs, and drug
paraphernalia. Following Scott’s testimony, the circuit court concluded, “The Court finds he’s
violated the terms and conditions of his probation. He’ll be remanded back for enforcement of the
sentence.” This timely appeal followed.

                                             ANALYSIS

       The Appellant argues that the circuit court erred by not conducting a de novo review of the
ninety-day period of confinement ordered by the general sessions court or considering other
sentencing options which would be available to the Appellant following revocation of his probation.
He does not challenge the grounds supporting revocation.

        Tennessee Code Annotated section 27-5-108(a) (Supp. 2003) provides that “[a]ny party may
appeal from an adverse decision of the general sessions court to the circuit court of the county within
a period of ten (10) days[.]” Subsection (c) states that such an appeal “shall be heard de novo in the
circuit court.” Tenn. Code Ann. § 27-5-108(c).

         In State v. Cunningham, 972 S.W.2d 16 (Tenn. Crim. App. 1998), the defendant’s probation
was revoked by the Municipal Court of Jackson, Tennessee. The defendant appealed the revocation
to the Circuit Court of Madison County, and the circuit court affirmed the municipal court’s
judgment without conducting a de novo hearing. A panel of this court reversed and remanded the
case to the circuit court for a de novo probation revocation hearing. In doing so, our court stated that
“[i]n a de novo review, ‘the parties are entitled to a reexamination of the whole matter of law and
fact.’” Id. at 18 (quoting Richards v. Taylor, 926 S.W.2d 569, 570 (Tenn. App. 1996)). The circuit
court is not concerned with what took place in the lower court; instead, “the matter is tried as if no
other hearing had occurred.” Id. (citing Hohenberg Bros. Co. v. Mo. Pac. R.R. Co., 586 S.W.2d
117, 119 (Tenn. App. 1979)). In other words, “[a] de novo hearing encompasses more than just the
presentation of proof.” Id. The court must try the matter “as if no judgment had previously been
rendered.” Id. This includes “a consideration of the various sentencing options if there is a finding
that the defendant violated the terms and conditions of probation.” Id.

        In this case, the circuit court failed to conduct any review of the sentence imposed by the
general sessions court and did not re-examine available sentencing options. Rather, the court simply
stated that the Appellant had violated the conditions of his probation and remanded the case to the
general sessions court for enforcement of the sentence. Under Cunningham, the Appellant is entitled
to have this case remanded to the circuit court for the limited purpose of having the court conduct
a de novo review of his sentence following revocation.


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        The Appellant also argues that his ninety-day sentence is the product of vindictive
prosecution. This issue is rendered moot by our remand for a de novo sentencing hearing;
nonetheless, by failing to prepare an adequate record, the Appellant has waived appellate review at
this time. The Appellant’s contention hinges on his bare allegation that other defendants in similar
cases have been required to serve only ten days in jail upon their probation being partially revoked.
The Appellant has failed to include any evidence of these other cases in the record. It is the duty of
the Appellant to prepare any adequate record in order to allow meaningful review on appeal. See
Tenn. R. App. P. 24(b); State v. Max, 714 S.W.2d 289, 293 (Tenn. Crim. App. 1986) (statements in
briefs as to what occurred in the trial court cannot be considered unless they are supported by the
record).

                                          CONCLUSION

        Based upon the foregoing, this case is remanded to the Carroll County Circuit Court for the
purpose of conducting a de novo review of the Appellant’s sentence following revocation and entry
of an order of disposition of the same.



                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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