State v. James Clinton Wolford

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DECEMBER SESSION, 1998 FILED

February 18, 1999

Cecil Crowson, Jr.

STATE OF TENNESSEE, ) Appellate C ourt Clerk

) No. 03C01-9708-CR-00319

Appellee )

) HAMILTON COUNTY

vs. )

) Hon. Stephen M. Bevil, Judge

JAMES C. WOLFORD, )

) (Probation Revocation)

Appellant )

For the Appellant: For the Appellee:

Don W. Poole John Knox Walkup

Poole, Thornbury, Morgan & Attorney General and Reporter

Richardson

732 Cherry Street R. Stephen Jobe

Chattanooga, TN 37402 Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

2d Floor, Cordell Hull Building

Nashville, TN 37243-0493

William H. Cox III

District Attorney General

Bates William Bryan, Jr.

Asst. District Attorney General

600 Market Street

Third Floor, Court Building

Chattanooga, TN 37402

OPINION FILED:

AFFIRMED

David G. Hayes

Judge

OPINION

The appellant, James C. Wolford, appeals the revocation of his sentence of

periodic confinement by the Hamilton County Criminal Court resulting in the

reinstatement of his original sentence of four years in the Department of Correction.

The decision of the trial court revoking the appellant from his probationary

status and reinstating the appellant’s four year sentence is affirmed. However, this

cause is remanded to the trial court for modification of the judgment to reflect

suspension of the appellant’s driver’s license for a period of four years as authorized

by law.

Background

At some time during the early morning hours of September 30, 1992, the

appellant, a twenty-two year old Chattanooga entrepreneur, struck a pedestrian,

Rodney Walker, with his BMW automobile, resulting in Walker’s death. The

appellant fled from the scene of the accident to the apartment of his girlfriend. He

then returned home where he informed his father of the incident. His father

escorted him back to the crime scene where the appellant admitted his involvement

to law enforcement officers. Tests subsequently performed on both the deceased

and the appellant revealed that both men were legally intoxicated at the time of the

offense.

On December 10, 1996, the appellant pled guilty to one count of vehicular

homicide as a result of intoxication, a class C felony, in the Hamilton County

2

Criminal Court. 1 As provided in the negotiated plea agreement, the trial court

imposed a sentence of four years in the Department of Correction. The court

suspended this sentence and imposed a sentence of periodic confinement, ordering

the appellant to serve six months on work release at the Hamilton County

Workhouse 2 followed by six years probation. In pronouncing sentence, the court

deferred entry of the judgment until December 10, 1997, at which time the court

would determine whether the conviction should be diverted.

On June 4, 1997, the trial judge contacted the appellant’s counsel, informing

him that he was aware that the appellant had participated in a Muscular Dystrophy

golf tournament3 sponsored by Golden Gallon convenience stores and that he would

conduct a hearing on the following day to determine whether the appellant had

violated the terms of his work release. The judge informed counsel that, if the

appellant did not appear in court the next day, a warrant would issue for the

violation. The following day, June 5, the appellant, accompanied by counsel,

appeared before the court. The court informed the appellant of its knowledge of the

appellant’s participation in the golf tournament. The appellant apologized and

explained that his participation was for “business relations only.” The trial court then

questioned the appellant as to “[h]ow many other times have you played golf since

you have been on work release?” The appellant responded that the Muscular

Dystrophy tournament was the only time that he had played golf while on work

release. He stated that he is in the beverage distribution business and that Golden

1

The appellant was previously granted pretrial diversion on the charge of leaving the

scene of the ac cident aris ing from this sam e inciden t. At the time of the app ellant’s guilty plea to

vehicular homicide, the appellant had successfully completed his two year diversionary period, the

charge was dismissed, and the records relative to this charge were ordered expunged.

2

Specifically, the appellant was ordered to report to the Hamilton County Workhouse by

7:00 p.m . on Dec emb er 26, 19 96. “From Mond ay through Friday of ea ch wee k, the [ap pellant]

shall be released from the . . . Penal Farm at 6:30 a.m. in order that he may report to his business

. . . .” “No later than 8:00 p.m. on ea ch day the appellant shall report back . . for his incarceration.”

“On Saturday of each we ek, the said Defendant sha ll be released from 6:30 am to 6:00 p.m.”

“During the appe llant’s work release s tatus from Mond ay through Saturda y, he shall not be

anyw here othe r than at his busin ess or an y locat ion w here his bu sine ss ta kes him .” (Em pha sis

added).

3

Appar ently, the trial judge noticed th e appe llant’s nam e in an article relating the c harity

golfing event in the local newspaper.

3

Gallon is his “biggest” account. Accordingly, he maintained that his participation in

this golf tournament was “very much in association with his business.” The trial

court concluded that the appellant had violated the court’s order and revoked the

appellant’s work release. The court also determined that the judgment should be

entered at this time, concluding that there “were sufficient reasons why the court

would not consider a deferred judgment even at a future date.”

On June 9, 1997, the trial judge again summoned the appellant before the

court to inform the appellant that it had come to the court’s attention that the

appellant may have made false statements to the court on June 5. The court

advised the appellant and his counsel that the appellant was facing a revocation

hearing for perpetrating a fraud upon the court by making false representations at

the June 5th proceeding. Specifically, the trial court informed the appellant that,

since the June 5th hearing, it had come to the attention of the court that the

appellant had played in at least two other golf tournaments4 despite the appellant’s

denial of such activity at the prior hearing. Accordingly, the trial court set a

revocation hearing to be held on June 20th.5

On June 30, 1997, a revocation hearing was held. The appellant, now the

twenty-seven year old president of a beverage distributing company, admitted that

he had indeed played in two additional golf tournaments, the Moc Docs tournament

for the University of Tennessee at Chattanooga and the Fellowship of Christian

Athletes tournament. He explained that he had interpreted the conditions of his

work release to permit him to go where his business carried him, which included

places out of the ordinary due to his position as president of the company. Indeed,

he stated that he played in the tournaments because no other individual in the

company could effectively replace him and he needed to foster good relations with

4

The court informed the appellant that the tournaments took place on April 30th and May

16th.

5

This hearing was subsequently continued to June 30, 1997.

4

his clients. The appellant admitted that, after his release every day from the

workhouse, he would travel home to shower and dress before going to work. He

also confessed that he had attended marriage counseling sessions with his fiancee

while on work release and he had, on occasion, gone to the driving range to hit

practice golf balls.

At the conclusion of the hearing but before making his ruling, the trial judge

appropriately observed:

. . .Justice is supposed to treat everyone who comes before this Court

the same. It doesn’t matter what your financial situation, it doesn’t

matter what your race, your creed or religion, your sexual preference, it

doesn’t matter. This Court has to consider every one the same if

justice is to be blind.

. . .[T]he longer I’m a judge I find out that there are people who want justice to

be blind unless it affects them . . . then let’s lift the blindfold just a little bit,

Judge, because this is a different situation. The Court can’t do that. Whether

Mr. Wolford comes from an affluent family or whether he comes from skid

row makes no difference to this Court.

I have to look at the facts and circumstances in Mr. Wolford’s case the

same as I would anyone here. . . . I have to look not only at what’s

best for Clinton W olford, I have to look to see what’s best for society,

what’s best for the community in its entirety because I’m held

accountable not only for Mr. Wolford, but for everybody else in

Hamilton County . . . .

The court then made its findings and entered its ruling in the present matter:

I find. . . ample evidence to have set aside his work release. . . . Mr.

Wolford has never . . . been willing to stand up and accept

accountability and the responsibility for what he did beginning that very

night when he started drinking and he ran over and hit Rodney Walker

....

...

Then he was placed on work release. Now, there’s some as he says

confusion in his mind as to whether or not he was allowed to play golf,

but this Court finds that Mr. Wolford never really -- his lifestyle was

never really altered while he was on work release. He left the

workhouse. He went home. He showered. He changed clothes. He

went to work when he wanted to. If he wanted to play golf, he played

golf. If he wanted to go to business luncheons with clients, he went to

business luncheons with clients. He went to marriage counseling

sessions. In the afternoon before he went back to the workhouse he

dropped by his house, took a shower, cleaned up. There has not been

anything to indicate his lifestyle is any different because he was on

work release. He was not being punished by his actions. He indicated

by his conduct that he wasn’t being punished.

5

It’s been shown to the Court and . . . it’s clear that he did not have to

play in these golf tournaments. He played in them because he wanted

to and not only did he play in these golf tournaments, but even if I

granted him the benefit of the doubt and said, okay, Mr. Wolford, you

played in these for business relationships, how in the world that

justifies going to Moccasin Bend and hitting golf balls when he’s

supposed to be at work or in the workhouse? . . . It just shows me that

he has not yet willing to have been able to stand up and accept the

responsibility and accountability for what he did.

And then when confronted by that, and I asked him, “Mr. Wolford,

have you played golf any other time other than . . . this tournament?”

And he said, “No, I have not.” Very emphatic, and Mr. Wolford’s not a

neophyte. He’s 27 years old. He’s a businessman that deals with

presidents of companies. . . . He’s got 10 to 12 employees. He meets

with these business presidents so I don’t find that he’s naive as far as

those types of things, and then when asked again today, “Why did you

lie?”

And he said, “I didn’t have an opportunity to consult with anybody else.

I didn’t have an opportunity to talk to anybody.” Again, he’s not willing

to accept the accountability and responsibility. you either tell the truth

or you tell a lie. . . . A very simple question, “Mr. Wolford, did you play

golf any other time?” All he had to say was, yes, sir, I did, and we

probably wouldn’t be here today, but once again, not wanting to stand

up and accept the responsibility and the accountability, he said, “No,

that’s the only time.”

And then it was only today in his testimony when the Court quizzed

him and I asked him, “Have there been other times that you played?”

“Oh, you mean played in golf tournaments?”

“No, have you played golf at any other time?”

“Well, I did hit range balls over at Moccasin Bend.”

Mr. Wolford intentionally, deliberately lied to this Court. He

misrepresented the facts as he’s done so many times by his conduct

to do what’s in the best interest of Clint Wolford. It was in his best

interest to lie to the Court and he did. You don’t need time to consult

with counsel when a question is asked of you and the answer is either

yes or no and you tell the truth or tell a lie.

...

Mr. Wolford, you put me in a position where I can do nothing else. If

there’s going to be justice in this courtroom and that justice is going to

apply across the board to each and every individual that comes before

it, you’ve put me in a position by your actions, by your refusal to accept

accountability and responsibility, by deliberately lying to this courtroom,

to this Court other than to revoke your probation and order that your

sentence be served.

6

I. Nature of Sentence Imposed by Trial Court

Before addressing the merits of the appellant’s issue, we are constrained to

determine the exact nature of the sentence imposed by the trial court. As previously

noted, the appellant, at the time of his revocation hearing, was serving a sentence of

periodic confinement although no judgment had been entered in this case imposing

any form of a sentence. The trial court’s order specifically provided that entry of

judgment was deferred for one year “at which time the court will review this matter.”

Moreover, the appellant, as required by the judicial diversion statute, Tenn. Code

Ann. § 40-35-313, was never placed under any supervisory agency. The

arrangement, thus, was one without the benefit of statutory authority. The State and

the appellant agree that the trial court’s reference to the sentencing provision of “six

months on work release” constitutes more properly, periodic confinement, see

Tenn. Code Ann. §40-35-307, as it fails to comport with the provisions of Tenn.

Code Ann. §40-35-315. Accordingly, the appellant argues that he, although

periodically confined, was technically under no sentence as no judgment had been

entered.

From the terms of the trial court’s order, it appears that the trial court granted

the appellant a six year period of probation pursuant to the judicial diversion

provisions of Tenn. Code Ann. § 40-35-113.6 As a condition of this probation, the

6

The trial co urt’s o rder follow ing th e app ellant Dec em ber 1 0, 19 96, g uilty plea prov ides in

pertinent p art:

Becau se of the application of the De fendan t for judicial dive rsion and the State

not objecting to the same, but not thereby agreeing to the sam e, the Court defers

entry of judgment at this time for a period of one year and until December 10,

1997, at which time the Court will review this matter.

As a condition of probation pursuant to Tennessee Code Annotated 40-35-313,

the Defendant shall report to the custody of the Hamilton County Workhouse no

later than 7:00 p.m. on December 26, 1996, to complete a term of six months on

a work release b asis. . . .

It is further Ordered that as a condition of the deferral of the entry of judgment

herein, the Defendant is prohibited from driving for a period of one year, from

December 10, 1996, until December 10, 1997.

It is further Ordered that Defendant’s sentence if not diverted shall be to a term

of 4 years as a standard range one offender. It is further Ordered that during the

7

trial court ordered the appellant to serve six months in the workhouse on work

release status.

There is little dispute that imposing a jail term as a condition of probation is

incompatible with the provisions of the judicial diversion statute, Tenn. Code Ann. §

40-35-313 (1996 Supp.). See State v. Cable, No. 03C01-9409-CR-00349 (Tenn.

Crim. App. at Knoxville, Jun. 1, 1995); Criminal Cases - Post Conviction Deferral-

Procedure, Tenn. Op. Atty. Gen. No. 92-33 (Apr. 16, 1992). Inasmuch as no

judgment of guilt is to be entered when judicial diversion is granted, the trial court

would not be authorized to sentence the defendant to a period of confinement.

Cable, No. 03C01-9409-CR-00349 at n. 4; Tenn. Op. Atty. Gen. No. 92-33. Thus,

although the court may impose a fine or may require reasonable public service, or

both, as a condition of judicial diversion, it may not require confinement in the

workhouse. Tenn. Op. Atty. Gen. No. 92-33. Accordingly, the trial court erred in

imposing a six month period of work release in the workhouse as a condition of

probation under Tenn. Code Ann. §40-35-313.

If the trial court’s sentence is unauthorized, we must then determine the

sentence contemplated by the court in view it’s pronouncement, i.e., a grant of

judicial diversion without confinement or a sentence of periodic confinement coupled

with probation. A trial court, within its discretion, may grant diversion to a defendant

who “has not previously been convicted of a felony or a class A misdemeanor;” and

“is found guilty or pleads guilty to a misdemeanor which is punishable by

imprisonment or a Class C, D, or E felony.” Tenn. Code Ann. § 40-35-313(a). If the

court grants diversion, the court may “without entering a judgment of guilty and with

the consent of the [defendant] . . . defer further proceedings and place the person

on probation upon such reasonable conditions as it may require . . .” Tenn. Code

pendency of the deferral of the entry of the judgment, the Defendant shall at the

expiration of the 6 months report to the Office of Probation and Parole. . . and

shall abide by the normal conditions of probation under active supervision for a

period of 6 years, pe nding fur ther Ord ers of the Court.

8

Ann. § 40-35-313(a)(1)(A). If the candidate for judicial diversion successfully

completes his term of probation, the court shall dismiss the case “without

adjudication of guilt.” Tenn. Code Ann. § 40-35-313(a)(2). However, a conviction

may be entered where the defendant fails to fulfill his obligations of probation. See

State v. Udzinski, No. 01C01-9610-CC-00431 (Tenn. Crim. App. at Nashville, Feb.

5, 1998).

Essentially, judicial diversion is post-conviction pretrial diversion. The

difference between the two being that judicial diversion follows a determination of

guilt and the decision to grant diversion rests with the trial court, not the prosecutor.

See State v. Anderson, 857 S.W.2d 571, 572 (Tenn.Crim.App. 1992). The pretrial

diversion statute, Tenn. Code Ann. 40-15-105(a)(1) (1995 Supp.), specifically

excludes those persons charged with vehicular homicide by intoxication from

eligibility. See State v. Burdine, 888 S.W.2d 463, 465 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1994); see also Availability of Pre-Trial Diversion in Vehicular

Assault and Vehicular Homicide Cases, Tenn. Op. Atty. Gen. No. 93-34 (Apr. 6,

1993). Cf. State v. Rhodes, 917 S.W.2d 708, 711-13 (Tenn. Crim. App. 1995),

perm. to appeal denied, (Tenn. 1996). See, e.g., State v. Wolford, No. 03C01-9308-

CR-00259 (Tenn. Crim. App. at Knoxville, Mar. 6, 1995), perm. to appeal denied,

(Tenn. Jul. 3, 1995) (pretrial diversion denied where defendant charged with

vehicular homicide by intoxication). Thus, pre-trial diversion may not be granted to

those charged with vehicular homicide by intoxication under Tenn. Code Ann. § 39-

13-213(a)(2) (1991).

“Tennessee courts have recognized the similarities between judicial

diversion and pretrial diversion and, thus, have drawn heavily from the case law

governing pretrial diversion to analyze cases involving judicial diversion.” State v.

Cutshaw, 967 S.W.2d 332, 343 (Tenn. Crim. App. 1997). We find no reason to do

differently. Indeed, it would be illogical for this court to conclude that those charged

9

with vehicular homicide by intoxication should remain eligible for a grant of judicial

diversion while being foreclosed from seeking pretrial diversion. Cf. Sentencing

Commission Comments, Tenn. Code Ann. § 40-35-313 (“[Judicial diversion]

appl[ies] to all misdemeanors except for driving under the influence and driving on a

canceled, suspended or revoked license.”). Accordingly, the appellant, in the case

sub judice, was not eligible for a grant of judicial diversion. Thus, this court

interprets the sentence imposed by the trial court to be that of periodic confinement

coupled with a term of probation.

II. Revocation of Probation

The appellant contends that the trial court abused its discretion in revoking

his probation. Encompassed within this broad challenge, the appellant complains

that he was not provided adequate, i.e., written, notice of the revocation proceeding,

thereby violating his due process rights. He also asserts that he did not violate the

conditions of his work release because “playing golf” is “in the course of” his

business.

When it comes to the attention of a trial court that a defendant who has been

released upon suspension of sentence has been guilty of breach of the laws of this

state or has violated the conditions of probation, the court has the power to issue a

warrant for the defendant’s arrest for this violation. Tenn. Code Ann. § 40-35-311(a)

(1996 Supp.). See also State v. Stubblefield, 953 S.W.2d 223, 224-25 (Tenn. Crim.

App. 1997). The court must hold a hearing at the earliest practicable time. During

this hearing, the court is empowered to revoke the defendant’s probation if the court

should find by a preponderance of the evidence that the defendant has so violated

the conditions of his probation. Tenn. Code Ann. § 40-35-311(b), -(d). In other

words, the proof of the violation need not be established beyond a reasonable

10

doubt. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Rather, the proof is

sufficient if it allows the trial court to make a conscientious and intelligent decision.

Id. (citing State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)).

On appeal, the findings of the trial court have the weight of a jury verdict, and,

as such, a reviewing court may not disturb the trial court’s ruling absent a clear

abuse of discretion. Harkins, 811 S.W.2d at 82 (citing State v. Williamson, 619

S.W.2d 145, 146 (Tenn. Crim. App. 1981)). To find an abuse of discretion, the

reviewing court must conclude that the record contains no substantial evidence to

support the decisions of the trial court. Harkins, 811 S.W.2d at 82 (citing State v.

Grear, 568 S.W.2d 285, 286 (Tenn. 1978), cert. denied, 439 U.S. 1077, 99 S.Ct.

854 (1979)).

A. Inadequate Notice

A defendant who is granted probation has a liberty interest that is protected

by due process of law. See Stubblefield, 953 S.W.2d at 225 (citing Practy v. State,

525 S.W.2d 677, 680 (Tenn. Crim. App. 1974)). Inherent within the defendant’s due

process rights is the right to written notice of the allegations which form the basis for

the proposed revocation of his sentence. See Gagnon v. Scarpelli, 411 U.S. 778,

786, 93 S.Ct. 1756, 1761-62 (1973); State v. Wade, 863 S.W.2d 406, 408 (Tenn.

1993); Practy, 525 S.W.2d at 679-80. Failure to provide such notice offends due

process. See State v. Worley, No. 03C01-9608-CR-00322 (Tenn. Crim. App. at

Knoxville, Aug. 29, 1997) (citing Gagnon, 411 U.S. at 786, 93 S.Ct. at 1761-62;

Wade, 863 S.W.2d at 408). The appellant, although conceding oral notice,

complains that, because the trial court failed to provide him written notice of his

violation, he was denied due process of law.

As commonly understood, the function of notice is to provide forewarning to

the person sought to be charged of the existence of the particular facts in question

11

or to enable him of acquiring the means of knowing it. See generally 58 AM .JUR .2D

Notice § 2, § 6 (1989); BLACK’S LAW DICTIONAR Y 1061,1062 (6th ed. 1990). Although

the appellant was not provided written notice, the trial court did, on June 9, 1997,

more than adequately inform in open court both the appellant and his counsel of the

reasons for the upcoming revocation proceeding. This court has on previous

occasions ruled that oral notice, constituting actual notice, is sufficient to satisfy

constitutional requirements of due process regarding a probation revocation hearing.

See. e.g., State v. Peck, 719 S.W.2d 553, 556-557 (Tenn. Crim. App. 1986); State

v. Carden, 653 S.W.2d 753, 754-55 (Tenn. Crim. App. 1983); Stamps v. State, 614

S.W.2d 71, 73-74 (Tenn. Crim. App. 1980). Although written notice may be

preferred, we conclude that the appellant was not prejudiced, misled, or surprised by

the court’s failure to issue written notice. Thus, the appellant’s claim of procedural

due process error is without merit.

B. Propriety of Revocation

Next, there is no dispute in the record that, while on work release status, the

appellant, by his own admission, played in three golf tournaments, hit practice golf

balls during his lunch hour, attended marriage counseling sessions during his lunch

hour, and casually engaged in other non-business related activities. This court finds

no reason to dispute the trial court’s finding that the appellant’s participation in these

golf outings does not amount to business related matters as the appellant was not

required to participate in these events. See State v. Leach, 914 S.W.2d 104, 106

(Tenn. Crim. App. 1995) (evidence need only show that trial court exercised a

conscientious and intelligent judgment in making the decision to revoke the

probation). We agree that these activities violated the conditions of the appellant’s

work release. See, e.g., State v. Bonner, No. 01C01-9710-CR-00446 (Tenn. Crim.

App. at Nashville, Aug. 5, 1998) (violation of conditions of work release sufficient to

revoke defendant from probated sentence).

12

In addition to the appellant’s clear violation of the agreed to conditions of his

work release status, the trial court also considered, as a basis for revocation, the

appellant’s untruthfulness to the court at the previous June 5th hearing. It is clear

from the record that the appellant made a false statement to the trial court at the

June 5th hearing by denying any participation in any golfing events except for the

Muscular Dystrophy tournament. While we acknowledge, as argued by the

appellant, that his false statements were not made under oath and, thereby, not a

”breach of the laws of this state,” see Tenn. Code Ann. § 40-35-311(a)(1996

Supp.), we recognize that no court system can function without safeguards against

actions that interfere with its administration of justice. As such, it would be illogical

to assume that a probationer is required, as a condition of probation, to make “full

and truthful reports” to his/her probation officers,7 but be permitted to make

deliberate and inaccurate representations to the court. We can reach no legitimate

conclusion other than finding that a probationer has an obligation to be candid with

the court as an implied condition of probation.

Indeed, the purpose of probation is to give a defendant an opportunity to be

rehabilitated under proper control and supervision. A trial court, in its discretion,

may revoke a probationer from this release status if the probationer demonstrates

that he is no longer entitled to such a release status. As understood by the courts of

this state and as directed by our sentencing provisions, a probationer is not entitled

to remain on release status if he has shown that he cannot comply with the laws of

this state, that he has violated a condition of his probation, or that he has not

demonstrated behavior indicating good citizenship. This suggests that a probationer

7

The following cases held revocation proper where probationer failed to make a full and

truthful rep ort to his pro bation off icer. See, e.g., State v. Gray, No. 01C01-9702-CC-00058 (Tenn.

Crim . App. at N ashville, Ma r. 24, 1998 ); State v. Johnson, No. 03C01-9705-CR-00175 (Tenn.

Crim . App. at Kn oxville, Feb . 13, 1998 ), perm. to appeal denied, (Tenn . Nov. 2, 19 98); Portal v.

State , 675 So .2d 708 ( Fla. Dist. C t. App. 3d 1 996); Edwards v. Florida, 561 So .2d 1354 (Fla. Dist..

Ct. App . 1990); State v. Jones, 847 P.2d 1176 (Idah o Ct. A pp. 1 993 ). Inde ed, a prob ation er’s

relea se s tatus has b een revo ked for th e wilfu l mis repr ese ntatio n of h is nam e, the nam es of his

fam ily mem ber and his prior crim inal record to his prob ation office r. See Rose boro v. S tate, 528

So.2d 499 (Fla. Dist. Ct. App.1988).

13

may be revoked if his conduct demonstrates that probation is not achieving its

rehabilitative purpose. See State v. Lee, 773 P.2d 655, 657 (Idaho Ct. App. 1989)

(citations omitted). Certainly, a probationer’s dishonesty with the trial court is an

important measure in determining whether a probationary status is effective on this

particular probationer. While the appellant’s dishonesty with the trial court is not a

specifically enumerated ground for revocation, it remains an action contrary to

societal notions of honesty and uprightness and reflects an unwillingness to admit

one’s wrongs. Cf. State v. Dowdy, 894 S.W.2d 301, 306 (Tenn.Crim.App.1994)

(lack of candor sufficient ground to deny probation).

In the opinion of this court, the trial court expressed sound and just reasoning

in concluding that further probation in the present case was inappropriate. We

conclude that the trial court did not abuse its discretion in revoking the appellant’s

probated sentence. Finding no error in the court’s decision, we affirm the order

revoking probation.

III. Conclusion

The judgment of the trial court revoking the appellant's probation is affirmed.

Additionally, we note that the trial court’s suspension of the appellant’s driver’s

license for a period of one year is in error. Tennessee law provides that “[t]he court

shall prohibit a defendant convicted of vehicular homicide from driving a vehicle in

this state for a period of time not less than three (3) years nor more than ten (10)

years).” Tenn. Code Ann. § 39-13-213 (c). Thus, this case is remanded to the trial

court for modification of its order to reflect that the appellant’s driver’s license shall

be suspended for a period of four years. See Cheairs v. State, No.

02C01-9304-CC-0070 (Tenn.Crim.App. Oct. 26, 1994) ("Tennessee law gives the

courts authority to correct an illegal sentence at any time, even if it has otherwise

14

become final.") ( citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.1978)).

____________________________________

DAVID G. HAYES, Judge

CONCUR:

________________________________

JERRY L. SMITH, Judge

________________________________

JAMES CURWOOD WITT, JR., Judge

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