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State v. Proffitt10/11/1999
The defendant, David Howard Proffitt, pleaded guilty to aggravated assault on December 3, 1995 in the Cumberland County Criminal Court. He was sentenced to six years to be served in the community corrections program. The defendant was charged with driving under the influence on June 13, 1998. As a result of this offense, a violation warrant was issued June 19, 1998. A second violation warrant was issued July 30, 1998, because the defendant was indicted for theft of a dump truck. A revocation hearing was held December 2, 1998. The trial court revoked the defendant's probation and ordered him to serve the remainder of his six-year term in prison. The defendant timely appealed. Based on our review of this matter, we affirm the decision of the trial court.
The defendant raises two issues on appeal:
I. Whether the trial court erred in violating the defendant's probation for allegedly committing the offense of driving under the influence and theft over $10,000 when the State failed to establish these violations by a preponderance of the evidence.
II.Whether the trial erred in violating the defendant's probation for violation of rules and conditions not placed in evidence.
The defendant entered a guilty plea on December 5, 1995, to the offense of aggravated assault. According to the judgment, he was granted probation and placed effective "immediately" into the community corrections program. The community corrections order, dated that same day, lists a number of conditions by which the defendant was to abide. Among these were the following:
3) not use intoxicants of any kind or use narcotic drugs; marijuana included; or visit places where intoxicants or drugs are unlawfully sold, disbursed or used.
10) obey the laws of the United States or any State in which he/she may be as well as any local ordinances.
Immediately above the defendant's signature on this form is stated the following:
Violation of any of the terms of the Community Corrections sentence may be sufficient cause for revocation of Community Corrections. The expiration date of this Community Corrections sentence is the 5th day of December, 2001.
I have read or have had read to me, the conditions of my Community Corrections Sentence. I fully understand them and agree to comply with them. I hereby waive all extradition rights and process and agree to return to Tennessee if at any time during my Community Corrections Sentence the Trial Judge directs me to do so.
On January 8, 1997, the trial court entered an order interrupting the participation of the defendant in the community corrections program, and ordering that he be on supervised probation with the State of Tennessee Probation Office in Cumberland County. It was while he was under the supervision of that office that the two violation of probation warrants were filed.
The standard of review upon an appeal of an order revoking probation is the abuse of discretion standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). "In order for a reviewing court to be warranted in finding an abuse of discretion in a probation revocation case, it must be established 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." Harkins, 811 S.W.2d at 82. If the trial Judge finds by a preponderance of the evidence that a probation violation has occurred, the court may revoke the defendant's probation. Tenn. Code Ann. § 40-35-311(e) (1997). Proof of a violation is sufficient if it allows the trial Judge to make a conscientious and intelligent judgment. State v. Smith, 909
Page 1 2 Tennessee DUI Attorneys
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