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State v. Tucker8/23/2001
son County (Tenn. Crim. App. Feb. 10, 2000); State v. Roger Dale Chisam, No. 85-194-III, Franklin County (Tenn. Crim. App. Dec. 13, 1985).
In Cousett, this court held that the fact that the affidavit supporting the revocation warrant was unsworn did not render the revocation proceedings void. Relying upon Chisam, it also held that the probation revocation warrant did not require an affidavit and was valid. In Chisam, the defendant was prosecuted for assault with intent to commit robbery and sought to exclude evidence taken from him when he was arrested on a probation revocation warrant. He sought suppression of the evidence, claiming in part that the warrant was not issued in compliance with the requirements of Rules 3 and 4 of the Tennessee Rules of Criminal Procedure. This court concluded that the probation revocation statute, not the Rules, provides the authority for a trial judge to issue revocation warrants. In this respect, it stated that a trial judge has the power to issue probation violation warrants without the necessity of an affidavit. We question the validity of these opinions relative to the arrest resulting from such a warrant. That is, we seriously doubt that a custodial arrest, i.e., a seizure of the person to the utmost degree through state action, may occur without adequate probable cause supported by affidavit under constitutional search and seizure requirements. In any event, this case may be resolved without such an analysis.
We agree with Cousett and Chisam to the extent that they recognize that revocation proceedings are not rendered void merely because the allegations of fact that, if true, justify revocation were not placed in affidavit form. The constitutional validity of the arrest, alone, has no relevance to a probation revocation proceeding about which the defendant has received adequate notice of the charges against him. Such is obviously the case before us. The evidence used to prove the defendant's violation of his probation conditions did not derive from his arrest upon the revocation warrant. The revocation proceeding was valid.
Relative to sentencing, the defendant contends that sentencing him to the maximum length of confinement was excessive. He points to his having successfully completed approximately fifteen months of supervised probation without incident and the fact that his lack of payment on the fine and court costs was based upon inability, not willful refusal. He asserts again that he did not understand the drug test procedure and that he tried to remedy his mistake by submitting to a drug screen elsewhere. The defendant asserts that he has proven himself "willing to comply with the conditions of probation, making incarceration unnecessary and excessive punishment."
The decision to revoke probation and to require confinement for the whole sentence is within the sound discretion of the trial court, and its judgment will be reversed only upon a showing of an abuse of discretion, reflected in the record by absence of substantial evidence to support the trial court's finding. See State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999); State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). The defendant's allegation of facts before us is futile - the trial court found that his testimony was not believable. Nothing in the record preponderates otherwise. Obviously, a person on probation for DUI who is using marijuana and refusing to comply with the drug testing requirements of his probation officer does not instill confidence about his future compliance with the law. We conclude that substantial evidence exists to support the trial court's decision. The judgment of the trial court is affirmed.
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