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State v. Dobbs

Court of Criminal Appeals of Tennessee, Knoxville

November 30, 2017

STATE OF TENNESSEE
v.
CECIL GLEN DOBBS, JR.

          Assigned on Briefs November 28, 2017

         Appeal from the Circuit Court for Jefferson County No. 12323-12324 O. Duane Slone, Judge.

         The Defendant, Cecil G. Dobbs, pleaded guilty to aggravated assault and theft of property valued at less than $500 in return for a sentence of seven years of split confinement with two years of incarceration followed by five years of probation. A probation violation warrant was issued based upon subsequently incurred charges and, after a hearing, the trial court revoked the Defendant's probation sentence, ordering that he serve his sentence in confinement. On appeal, the Defendant asserts that the trial court abused its discretion when it revoked his probation sentence and by "not allowing him to be heard" at the probation revocation hearing. After review, we affirm the trial court's judgment.

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

          Edward C. Miller, District Public Defender, and Rebecca V. Lee, Assistant Public Defender, Dandridge, Tennessee, for the appellant, Cecil Glenn Dobbs, Jr.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; James B. Dunn, District Attorney General; and Charles L. Murphy, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE.

         I. Facts

         On December 3, 2013, the Defendant entered guilty pleas to aggravated assault and theft of property valued at less than $500 in exchange for a seven-year sentence of split confinement with two years of incarceration followed by five years of probation. In October 2015, the Defendant's probation officer filed a probation violation report, alleging that the Defendant had violated the terms of his probation by failing to report, failing to report an arrest for Schedule III narcotics, possession of drugs, and failing to pay court costs and fees. The trial court issued a probation violation warrant, and later ordered the Defendant to serve seventy-five days before returning to probation.

         In March 2016, the Defendant's probation officer issued another probation violation report, alleging that the Defendant had been arrested for burglary of a motor vehicle, possession of drug paraphernalia, and resisting arrest. The Defendant also allegedly failed to report the arrest to his probation officer. The trial court issued a probation violation warrant and, after the Defendant's arrest, the trial court held a probation revocation hearing. At the hearing, the Defendant pleaded guilty "to a violation of probation second offense." The trial court, based on the Defendant's history and the new violations, revoked the Defendant's probation sentence. It is from this judgment the Defendant now appeals.

         II. Analysis

         On appeal, the Defendant argues that the trial court abused its discretion by revoking his probation and violated his due process rights by "prohibiting the Defendant from presenting evidence." The State responds that the trial court acted within its discretion when, after determining that the Defendant had violated the terms of his probation, it revoked the probation sentence. The State further argues that nothing in the record indicates that the Defendant was precluded from testifying and/or presenting evidence. We agree with the State.

         A trial court's authority to revoke a suspended sentence is derived from Tennessee Code Annotated section 40-35-310 (2014), which provides that the trial court possesses the power "at any time within the maximum time which was directed and ordered by the court for such suspension, . . . to revoke . . . such suspension" and cause the original judgment to be put into effect. A trial court may revoke probation upon its finding by a preponderance of the evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e) (2014). "In probation revocation hearings, the credibility of witnesses is to be determined by the trial judge." State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If a trial court revokes a defendant's probation, options include ordering confinement, ordering the sentence into execution as originally entered, returning the defendant to ...


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