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State v. Tucker8/23/2001
Assigned on Briefs June 27, 2001
The defendant, Bobby Gene Tucker, appeals from the revocation of his probation received for his conviction for driving under the influence of an intoxicant (DUI) after having served fifteen days in confinement. He contends (1) that the revocation warrant and affidavit are void, thereby voiding his probation revocation and (2) that the trial court abused its discretion in sentencing him to serve the maximum term of eleven months, twenty-nine days with credit for time served. We affirm the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Joseph M. Tipton, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Robert W. Wedemeyer, JJ., joined.
OPINION
The defendant was convicted on June 25, 1999. He was sentenced to eleven months, twenty-nine days with all but fifteen days suspended. Because he had not paid his fine and court costs, his probation was extended in June 2000 for a period of six months. In October 2000, the revocation warrant in this case was issued charging that the defendant admitted using marijuana, failed to submit to a drug screen test, and failed to pay any fine and court costs. At the revocation hearing, two probation officers testified. One said that the defendant had been asked to submit to a drug screen but that the defendant had left the probation office before the test was administered. She also testified that during a subsequent telephone call, the defendant admitted recent use of marijuana. The other officer testified regarding a telephone call during which the defendant admitted using marijuana. Although the defendant had not paid on his fine and costs, the record reflects that the defendant had been medically unable to remain employed and had applied for disability.
The defendant testified that he left the probation office before completing the drug screen because he was unfamiliar with the process and was concerned that an accurate result would not be possible, stating that he was on various medications. He denied admitting to the probation officers that he used marijuana. He also claimed that he submitted to a drug test at Cumberland Medical Center and that the results were negative.
The trial court found the probation officers to be credible and the defendant to be unworthy of belief. The trial court found that the defendant violated conditions of his probation regarding drug screens and the use of drugs. The court ordered the defendant to serve the remainder of his sentence of eleven months, twenty-nine days.
For the first time on appeal, the defendant attacks the revocation warrant and affidavit. He claims that because the affidavit neither alleges nor indicates that his original probationary period had been extended, the warrant and all subsequent proceedings are void. He asserts that the revocation warrant provided in Tenn. Code Ann. § 40-35-311(a) regarding probation violation is to be governed as the equivalent of an arrest warrant. He then notes that the affidavit for an arrest warrant must allege the essential facts constituting the offense. See Tenn. R. Crim. P. 3, 4. In response, the state contends that the fact that the defendant did not raise this issue in the trial court constitutes a waiver. Given the potential jurisdictional nature of the defendant's claim, the state, citing two unpublished cases from this court, argues that Tenn. Code Ann. § 40-35-311(a) does not specify any requirements for a revocation warrant and that the fact that the warrant was signed by the trial court meant that it was properly issued. See State v. Janie Cousett, No. W1999-01256-CCA-R3-CD, Madi
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