IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBE R SESSION, 1998
FILED
October 30, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805-CC-00134
Cecil Crowson, Jr.
) Appellate C ourt Clerk
Appellee, )
)
) MADISON COUNTY
VS. )
) HON. WHIT LAFON
MICHAEL D. LOVE, ) JUDGE
)
Appe llant. ) (Probation Revocation)
ON APPEAL FROM THE JUDGMENT OF THE
CIRCUIT COURT OF MADISON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
C. MICHAEL ROBBINS JOHN KNOX WALKUP
46 North Third Street Attorney General and Reporter
Suite 719
Memphis, TN 38103 CLINTON J. MORGAN
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243
JERRY W OODALL
District Attorney General
JAMES W. THOMPSON
Assistant District Attorney General
Lowell Thomas State Office Bldg.
Jackson, TN 38301
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defendant appeals as of right from the judg ment of the trial cou rt
which found him to be in violation of the terms of his probation. He argues that
the trial court erred in ordering the balance of his sentence to be served in
confinem ent. W e affirm the judgm ent of the tria l court.
In 1994, the Madison County, Tennessee grand jury indicted the Defendant
on charges of aggra vated robbe ry, conspiracy to com mit aggravate d robbery,
possession of a dead ly weapo n with inten t to emp loy it in the commission of
aggravated robbery, possession of cocaine with intent to sell or deliver, evading
arrest, and contributing to the delinquen cy of a minor. Su bsequen tly, pursuant
to a plea agreement, the Defendant pleaded guilty to aggra vated rob bery, a
Class B felony, and misdemeanor possession of cocaine. The plea agreement
called for concurrent sentences of eight years for agg ravated robbe ry and eleven
months and twenty-nine days for the misdemeanor drug charge. One year of the
sentence was ordered to be served in the coun ty workho use with th e balan ce to
be served in community corrections. By order entered on July 20, 1995, the
balance of the Defendant’s sentence was ordered to be served on probation.
On September 26, 1997, a probation violation warrant was issued, alleging
that the Defe ndant h ad violated probation by being arrested for “aggravated
sexual assau lt of a child” in Texas. The record reflects that the Defendant
subs eque ntly pleaded guilty in Texas to the felony of “indecency with a child by
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exposu re.” He received a three-year sentence in Texas which was ordered to be
served o n “com munity s upervisio n.”
On March 10, 199 8, after conducting an evidentiary hearing on the
probatio n violation warra nt, the tria l court fo und th at the D efend ant wa s in
violation of the te rms o f his probation. Th e court ordered the probation revoked
and the balance of the Defendant’s sentence served in the Department of
Correction. It is from the order of the trial court directing that the balance of the
Defendant’s sentence be served in confinement that the Defendant appeals.
When a probation revocation is challenged, the appellate courts have a
limited scope of review. For an appellate court to be warranted in finding a trial
judge erred in determining that a violation has o ccurre d, the re cord m ust co ntain
no substan tial evidenc e to supp ort the con clusion o f the trial judge. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If the violation is so supported by the
record, the judgment of the trial court revoking probation will not be disturbed on
appeal unless it appears that the trial court acted arbitrarily or otherwise abused
its discretion . State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App.
1981).
When a trial judge grants a suspended sentence, that judge demonstrates
a certain amount of confid ence that the Defe ndan t will lead a lawful life. When
the Defendant’s subsequent actions violate that confidence, the trial judge again
exercises discretion in determining whether the suspended sentence should be
revoked. Daven port v. State , 381 S.W.2d 276, 27 9 (Ten n. 1964 ); Thom pson v.
State, 279 S.W.2d 261, 262 (Tenn. 1955). The Defendant’s subsequent actions
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may indicate that the initial decision to suspend the sentence was a mista ke. All
probationers are deemed to be on notice that they may not engage in unlawful
activity or othe rwise c ondu ct them selves incon sisten tly with go od citize nship if
they are granted p robatio n instead of incarce ration. Robe rts v. State, 546
S.W .2d 264, 265 (Tenn. Crim . App. 1976 ).
The Defe ndan t conc edes that his felony conviction in Texas constitutes a
violation of the terms of his Tennessee probation. He argues, however, that the
trial judge abused his discretion by ordering the balance of the Defe ndant’s e ight-
year sentence to be served in the Department of Correction. He ar gues that this
Cou rt shou ld remand the case and direct the trial judge to place the Defendant
back o n proba tion.
A trial court is ves ted with the statutory au thority to “revoke the probation
and suspension of sentence and cause the defendant to commence the
execution of the judgment as originally entered.” Tenn. Code Ann. § 40-35-
311(d). 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.” Tenn. Code Ann. § 40-35-310. The trial judge
retains the discretionary authority to order the defendant to serve the original
senten ce. See State v. Duke, 902 S.W .2d 424, 427 (Tenn. Crim . App. 1995 ).
The Defendant, who was already on probation for a felony, committed
another felony. Under these circumstances, the Defendant’s argument that he
is entitled to a second grant of probation is not particularly persuasive. The
testimony given by the Defendant at his revocation hearing demonstrates little,
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if any, assurance that he wo uld be unlike ly to violat e his probation again were he
allowed to contin ue to s erve h is sentence on probation. This was obviously also
the conclusion of the trial judge. Based on our review of this record, we cannot
conclude that the trial judge erred or abused his discretion in ordering the
balance of the De fendant’s sentence to be served in the Department of
Correc tion.
The judgment of the trial court is affirmed.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
PAUL G. SUMMERS, JUDGE
___________________________________
JOE G. RILEY, JUDGE
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