State of Tennessee v. Travis Vaughn

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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