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State v. Dunn

Court of Criminal Appeals of Tennessee, Nashville

May 24, 2017

STATE OF TENNESSEE
v.
RUDY VINCENT DUNN

          Assigned on Briefs April 26, 2017 at Knoxville

         Appeal from the Circuit Court for Marshall County No. 2013-CR-101 Forrest A. Durard, Judge.

         The Defendant, Rudy Vincent Dunn, appeals from the Marshall County Circuit Court's revocation of his probation for his conviction for felony drug possession and order that he serve the remainder of his one-year, three-month sentence in confinement. The Defendant contends that the trial court abused its discretion by ordering him to serve his sentence. We affirm the judgment of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Donna Orr Hargrove, District Public Defender, and Michael J. Collins, Assistant Public Defender, for the appellant, Rudy Vincent Dunn.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Robert J. Carter, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE.

         On July 24, 2013, the Defendant was indicted for possession of marijuana with the intent to sell and to deliver. The Defendant pleaded guilty, and the trial court merged the offenses and sentenced the Defendant to one year, three months in confinement. On May 22, 2014, the Defendant was placed on determinate release probation, after serving thirty percent of his sentence. See T.C.A. § 40-35-501(a)(3) (2014).

         On February 19, 2015, a probation violation report was filed with the trial court, alleging that the Defendant had failed to pay court costs and fines and had failed to complete all of his court-ordered public service work. An arrest warrant was issued on February 19, 2015. An amended probation violation report was filed with the trial court on July 8, 2015, alleging that the Defendant had pleaded guilty to misdemeanor drug possession in Davidson County. At the July 8, 2015 probation revocation hearing, the Defendant admitted he had violated the terms of his probation by failing to pay court costs and by failing to complete his public service work. The court extended the Defendant's probation for one year and required the Defendant to perform thirty-two additional hours of public service.

         Another probation violation report was filed with the trial court on May 23, 2016, alleging that the Defendant tested positive for marijuana on May 18, 2016, and that a laboratory analysis confirmed the presence of marijuana in the Defendant's system on May 20, 2016. An arrest warrant was issued on May 25, 2016. This probation violation allegation is the subject of the present appeal.

         At the July 20, 2016 revocation hearing, the Defendant pleaded guilty to violating the conditions of his probation and requested a hearing for the trial court to determine the disposition of the probation violation. The Defendant testified that he tested positive for marijuana and that he used marijuana because he became scared he had cancer. He said that he noticed blood in his stool, that the amount increased, and that he began to think he had colon cancer. He said that he researched his symptoms and found his symptoms were consistent with colon cancer and that he had a strong family history of cancer. The Defendant recalled that on one occasion he collapsed, was taken to the emergency room, and underwent a colonoscopy. He said that he did not have cancer but that eight or nine polyps were removed. The Defendant stated that he was wrong to use marijuana, that he was not thinking properly, and that he did not consider his probation and employment. He requested leniency.

         On cross-examination, the Defendant testified that at age seventeen he was convicted of possession of heroin, that the drugs were not his, and that he did not serve any time in confinement. He said relative to the original charge in this case that he admitted to the arresting officers that he possessed marijuana and that he was going to sell it before his arrest. He agreed that he admitted during the presentence investigation that he used marijuana after he pleaded guilty but before the sentencing hearing. He said he served about four or five months in confinement before being released on probation.

         The Defendant testified that his marijuana use at the time he thought he had cancer was not to self-medicate, that he used it only once because he was on probation, and that he was not in the "right frame of mind." He said he received a letter from his doctor two weeks before the revocation hearing requesting that the Defendant contact his doctor if his health or family history changed. ...


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