Assigned on Briefs January 6, 2015
Appeal from the Criminal Court for Shelby County No. 09-07601 Paula Skahan, Judge
Edward Perry Bronston, Memphis, Tennessee, for the appellant, Jasper Clayton.
Herbert H. Slatery III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Amy P. Weirich, District Attorney General; and Pamela Stark, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which Alan E. Glenn and Camille R. McMullen, JJ., joined.
ROGER A. PAGE, JUDGE
The sparse record before this court indicates that appellant was indicted by a Shelby County grand jury for facilitation of aggravated robbery. He pleaded guilty to the offense on February 23, 2010, and the trial court granted his application for judicial diversion. The diversionary period was for three years, to end on February 25, 2013.
Included in the appellate record, inter alia, are three documents from the district attorney general's office styled "Petition for Revocation of Suspension of Sentence, " one order dismissing a petition to terminate judicial diversion, and one order terminating diversion. The first petition in the record was filed on October 5, 2011, and the basis listed for termination was that appellant had been arrested on June 2, 2011, for firearm and drug charges. The court's order dismissing the first petition to terminate judicial diversion was entered on December 2, 2011. The second petition to terminate judicial diversion was filed on February 25, 2013, and alleged that appellant owed $7, 694.50 in court costs and $395 in probation fees. The second petition also alleged that appellant had been arrested on January 13, 2011, for an aggravated burglary that occurred on November 20, 2010. The second petition set forth that appellant's fingerprints had been found on an exterior bedroom window at the burglarized residence. The final petition to terminate judicial diversion was filed on February 12, 2014, and alleged that appellant was cited for misdemeanor possession of a controlled substance on April 20, 2012, that he failed to appear in General Sessions Court on June 18, 2012, and that he resisted official detention on July 1, 2013, when officers attempted to arrest him on the basis of several warrants. Included in the record as exhibits to the revocation hearing are certified judgment sheets for resisting official detention and possession of a controlled substance. The trial court treated the final petition as an amendment to the February 25, 2013 petition. See State v. Shaffer, 45 S.W.3d 553, 555-56 (Tenn. 2001) (holding that a trial court did not abuse its discretion when it revoked a defendant's probation based on allegations in an amended warrant).
The trial court held a hearing on the State's petitions to terminate diversion on February 12 and 13, 2014. At the hearing, counsel for appellant argued that appellant did not have notice of the allegations against him because the revocation warrant only listed the arrest on January 13, 2011, for aggravated burglary but that the general sessions court had dismissed the aggravated burglary case for lack of probable cause.
Andrew Bradford, appellant's probation officer, testified at the hearing that appellant had not complied with the terms of his supervised release. Mr. Bradford said that he initially filed a petition to revoke appellant's judicial diversion in 2011 for an aggravated burglary that allegedly occurred on January 13, 2010. Mr. Bradford testified that a warrant was issued in 2011 with regard to that violation. Mr. Bradford stated that he filed another petition on January 21, 2011. The trial court at that point in Mr. Bradford's testimony stated that it had dismissed that petition. Mr. Bradford said that he filed yet another petition on July 12, 2011, alleging that appellant had been arrested for possession of a firearm as a dangerous felon, possession of marijuana with intent to sell, and possession of drug paraphernalia. No warrant was issued in connection with the July 12 petition. Mr. Bradford subsequently filed a petition on August 21, 2012, alleging that appellant failed to report as ordered. Mr. Bradford testified that the last warrant in his file was issued February 25, 2013, and included allegations regarding the aggravated burglary.
On cross-examination, Mr. Bradford stated that appellant was already in custody when Mr. Bradford applied for the warrant that issued on February 25, 2013. Mr. Bradford testified that he filed for warrants twice, once on January 21, 2011, and again on February 25, 2013. He assumed that the first one "was lost." He stated that the purpose of the February 2013 warrant was to keep appellant in custody. Through additional questioning by the assistant district attorney general and the court, Mr. Bradford testified that appellant received misdemeanor citations in 2012.
The trial court ultimately terminated appellant's judicial diversion, finding that he had "clearly been convicted of other offenses that occurred during the original three[-]year term of diversion." The court entered a written order terminating diversion on ...