No. M2002-02266-CCA-R3-CD.Court of Criminal Appeals of Tennessee. at Nashville.Assigned on Briefs April 22, 2003.
Filed November 7, 2003.
Direct Appeal from the Circuit Court for Maury County Nos. 11679
11680; Stella Hargrove, Judge.
Affirmed.
Robert Stovall, Columbia, Tennessee, for the Appellant, Howard Glidewell.
Paul G. Summers, Attorney General Reporter; Renee W. Turner, Assistant Attorney General; Mike Bottoms, District Attorney General; and Daniel Runde, Assistant District Attorney General, for the Appellee, State of Tennessee.
James Curwood Witt, Jr., J., delivered the opinion of the court, in which Joe G. Riley and Norma McGee Ogle, JJ., joined.
OPINION
JAMES CURWOOD WITT, JR., JUDGE.
The defendant, Howard Glidewell, appeals the Maury County Circuit Court’s revocation of his probation. Because the lower court’s decision to revoke probation was grounded within that court’s discretion, we affirm the revocation.
Via July 2000 guilty pleas and an agreed seven-year, probated sentence, the defendant, Howard Glidewell, disposed of twelve bad check charges. On November 14, 2001, the trial court partially revoked the seven-year sentence, ordered the defendant to serve jail time until December 20, 2001, and be released back onto probation. That order also provided the defendant was to begin making restitution payments upon his release from jail on December 20, 2001; the trial court would review the matter on March 26, 2002, to determine whether the defendant was paying restitution; and the trial court would revoke in full if “no good faith efforts” had been made to pay restitution. The defendant testified that he agreed to those terms. Nevertheless, no payments were made. Therefore, on March 28, 2002, the state filed a probation violation warrant in which it alleged that the defendant had failed to make restitution payments. On September 3, 2002, the court revoked the defendant’s probation and ordered him to serve his original sentence in incarceration. From that judgment, the defendant appeals. We affirm the lower court’s judgment.
The defendant challenges the revocation order based upon his claim that the trial court failed to find that he willfully failed to pay restitution. Essentially, he claims that his poverty prevented him from paying and that, accordingly, the lower court should not have revoked his probation.
The record before us reflects that the defendant was ordered to pay $2,420 in restitution on bad check convictions. At the revocation hearing, the state established that the defendant had paid no restitution since the imposition of the conviction on July 21, 2000.
At the September 3, 2002 revocation hearing, the 57-year-old defendant testified that, although he had no college degree, he graduated from high school and completed a year of electronics training. He received no certificate for this training, however, and possessed no skills. He testified that he had been “offered several jobs, in the last 30 days” and that, since the doctor had released him for light duty, he had a taxi dispatching job waiting for him.
The defendant testified, “I have three kinds of heart conditions. . . . I have an enlarged heart. I have leakages of the heart and I have membrane [sic] around my heart.”
The defendant testified that he served time in jail in Williamson County on bad check charges and that after he was released from the Williamson County jail in December, 2001, he had been “in and out of the hospital.” Essentially, he was in the hospital from February 27 to March 27, 2002. He was working in the taxi business on February 27 when he passed out and was taken to the hospital. The defendant testified that he had been locked up on bad check charges in Dickson County since May 13, 2002.
When not incapacitated or in jail, the defendant worked part-time, earning about $190 per week He had a $75-per-week car payment and a $100-per-month car insurance payment. These were expenses that facilitated his operating a taxi business. He had no expenses for housing or electricity. He spent approximately $1.20 per day for cigarettes. He sometimes borrowed money from his son to pay his telephone bill. He testified that he owed an aggregate of $1,000 to $2,000 to the courts in Dickson County and Williamson County.
The defendant testified that prior to his recent periods of incarceration, he had been receiving approximately $600 a month in government disability payments. These payments were suspended because of his incarceration, and despite his efforts to activate them again, the payments had not resumed. His disability counselor told him that he would qualify for a lump-sum payment after his incarceration was complete, and he believed that within 90 days after being released from confinement, he would receive enough money to pay all of his court obligations.
In summarizing, the defendant testified that in the preceding months, he had no ability to pay his restitution because he had been sick and had been in jail.
The trial judge found that the defendant, whom she described as a “multi-county offender,” had the ability “to make some payment, even a dollar a day, on his restitution. He’s a con artist. He’s failed and refused to do this.” The court determined that the defendant had “willfully refused to make even a minimum payment on restitution” since the court’s last review on November 14, 2001.
The standard of review upon appeal of an order revoking probation is the abuse of discretion standard. State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991). In order for an abuse of discretion to occur, the reviewing court must find that the record contains no substantial evidence to support the conclusion of the trial judge that a violation of the terms of probation has occurred. Id. at 82; State v. Delp, 614 S.W.2d 395, 398
(Tenn.Crim.App. 1980). The trial court is required only to find that the violation of probation occurred by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(e) (2003). Upon finding a violation, the trial court is vested with the statutory authority to “revoke probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered.” Id. Furthermore, when probation is revoked, “the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revocation of such suspension.” Id. § 40-35-310 (2003). The trial judge retains the discretionary authority to order the defendant to serve the original sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn.Crim.App. 1995).
When a revocation is sought for failure to pay a fine or restitution, the trial court must inquire into the reasons for the failure to pay and may revoke the probation only when it determines that the failure to pay is willful. Bearden v. Georgia, 461 U.S. 660, 672-73, 103 S.Ct. 2064, 2073 (1983); State v. Dye, 715 S.W.2d 36, 40 (Tenn. 1986); Massey v. State, 929 S.W.2d 399, 402 (Tenn.Crim.App. 1996). “If the nonpayment is due to willful refusal to pay or failure to make sufficient bona fide efforts to obtain the means to pay, the probation may be revoked.” State v. Regina Ann Owen, No. 03C01-9707-CC-00271, slip op at 3-4 (Tenn.Crim.App., Knoxville, June 22, 1998).
In the present case, the trial court, which had the opportunity to hear the defendant’s testimony, made an affirmative finding that the defendant willfully failed to pay any restitution. The defendant’s lapse is not that he failed to complete restitution but rather that he failed to pay any restitution, despite that he had been able to work at least part time, is capable of light-duty work, and experienced meaningful time periods in which he was neither hospitalized nor incarcerated. Thus, the record contains substantial evidence to support the lower court’s conclusion, and we discern no abuse of discretion in the lower court’s decision to revoke probation.
Accordingly, we affirm the judgment of the trial court.