State v. Steven Culps ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
JANUARY 1998 SESSION
February 12, 1998
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9705-CC-00163
Appellee, )
) MADISON COUNTY
VS. )
) HON. FRANKLIN MURCHISON,
STEVEN CULPS, ) JUDGE
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
GEORGE MORTON GOOGE JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
VANESSA D. KING CLINTON J. MORGAN
(at trial and of counsel on appeal) Assistant Attorney General
Assistant Public Defender Cordell Hull Building, 2nd Floor
227 West Baltimore 425 Fifth Avenue North
Jackson, TN 38301-6137 Nashville, TN 37243-0493
GREGORY D. SMITH JERRY WOODALL
(on appeal) District Attorney General
Contract Appellate Defender
One Public Sq., Suite 321 DONALD H. ALLEN
Clarksville, TN 37040 Assistant District Attorney General
225 Martin Luther King Dr.
P.O. Box 2825
Jackson, TN 38302-2825
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Steven Culps, appeals the Madison County Circuit Court's
order revoking his probation. The sole issue presented for review is whether the
trial court erred in revoking his probation. The judgment of the trial court is
affirmed.
PROCEDURAL HISTORY
The defendant pled guilty in October 1994 to aggravated burglary and
theft of property under $500. He was sentenced to intensive probation for six (6)
years and eleven (11) months twenty-nine (29) days for these offenses,
respectively. The sentences were to run concurrently.
In January, February and March of 1995, the defendant tested positive
for cocaine use. In April 1995, the defendant stopped making required weekly
visits to his probation officer. In December 1996, a probation violation report was
filed by the defendant’s probation officer.
On January 1, 1997, the defendant was arrested and charged with driving
under the influence, driving on a revoked license, and violating the open
container and seatbelt laws. He subsequently pled guilty to these charges. By
virtue of the time of day the defendant was arrested, he was also in violation of
the curfew provision of his probation.
After a hearing on January 10, 1997, the trial court noted the defendant’s
failure to report, his illicit use of drugs, and his conviction for driving under the
influence. The trial court then revoked the defendant’s probation.
STANDARD OF REVIEW
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 person has
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violated a condition of probation. Tenn. Code Ann. §§ 40-35-310, 311. The
decision to revoke probation rests within the sound discretion of the trial court.
State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Probation
revocations are subject to an abuse of discretion, rather than a de novo standard
of review. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of
discretion is shown if the record is devoid of substantial evidence to support the
conclusion that a violation of probation has occurred. Id. The evidence at the
revocation hearing need only show that the trial court exercised a conscientious
and intelligent judgment in making its decision. State v. Leach, 914 S.W.2d 104,
106 (Tenn. Crim. App. 1995).
REVOCATION OF PROBATION
The defendant contends the trial court erred in revoking his probation.
The primary basis of this claim is that, because of the defendant’s poor health,
the trial court should have ordered only a short jail term followed again by
probation. The trial court recognized the defendant’s health problems and noted
on the order that the sentence should be served at a special needs prison.
As stated above, this Court’s standard of review of probation revocation is
abuse of discretion, not de novo. The record reveals substantial evidence that
the defendant violated the terms of his probation; therefore, this Court will not
disturb the judgment of the court below.
The judgment of the trial court is affirmed.
______________________________
JOE G. RILEY, JUDGE
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CONCUR:
______________________________
JOE B. JONES, PRESIDING JUDGE
______________________________
PAUL G. SUMMERS, JUDGE
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