### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Bri efs Februa ry 4, 2003 STAT E OF T ENNES SEE v. JAMES CRAVE NS Direct Appeal from the Criminal Court for P utnam County No. 01-0568 Lillie Ann Sells, Judge

No. M2002-01216-CCA-R3-CD - F iled October 2, 2003

The Putnam County trial

court re voked the probatio n of the de

fendant , James Cravens, and ordered h imto serve his original sentence of eleve n months and twenty-nine day s in confinement. On appeal, the defendant contends: (1) the evidenc e was insufficient to support the trial court’s probation revoca

tion orde r; (2) hissentenc e is exces sive; and (3) the tr ial cour t erred in placing certain condition s on his bond

pending appeal. We affir

m the judgment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J ERRY L. S MITH , J., deliver ed the opinion of the

court, in whic h D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined. D avid N. B rad y, Di st ric t P ubl ic D efe nde r (a t h ear in g an d on app eal ); a nd J ohn B. N is bet , III, Assistant District Pu

blic Def ender ( on appea

l), for th e appell ant, James Cravens. Paul G. Summers , Attorne y General and Repor

ter; Pete r M. Coug

hlan, Ass istant Atto

rney Genera l; William Edward Gibson, District Attorney General; and Benj am in W. Fann, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

. OPINION On December 21, 2001, the defenda nt enter ed guilty plea s to simple possession of methamphetamine and possession of drug paraphernalia, Class A misdemeanors. See Tenn. Code Ann. §§ 39-17- 418(c) ( simple poss e ssion), -425(a) (drug paraphe rnalia). The defendant rece ived an effec tive sente

nce o f eleven months and twenty -nine days to be se rved on probation. On May 13, 2002, a probation revocation hearing was held, during which the trial court revoked the defendant’s probation and ordered him to serve his orig inal sentence in confinement. This appeal ensued.-2- I. PROBATION REVOCATION HEARING Michael Wright, the defendant’s probation officer, testified he filed a probation revocation complaint after the defendant admitted that he smoked mar ijua na on February

14, 2002. Wright stated the defendant had otherwise complied with the terms of his probation. Wright testified the defendant had also been placed on proba

ti on due to an unrelated conviction in Cumberland County. The defenda nt’s prob ation wasrevoked in Cu mb er la nd Co un ty, and he was sentenced to ten day s incarceration and community service. The trial cou

rt found t he defe ndant wa s required to re frain fr om using i llegal

drugs a s a condition of

hi s p ro ba ti on . T he co ur t f ur th er fo un d t he st at e e st ab li sh ed by a preponderance of the evidenc e that the

defenda nt violate d his proba

tion by using illegal dru gs. The trial cou

rt noted th

e seriou sness of t

he defe ndant’s c onvicti o ns and characterized methamphetamine as “one o f the wor st drugsthere c ould possib ly be.” The court further noted the defendant was also on probation for another conviction in Cumberland County. It determined the defendant did not take the terms of his probation seriously. The trial court or der ed the defendant to serve his original eleven-month, twenty -nine-day sentence with credit for time served. II. PROBA TION REVOC ATION The defenda

nt contends the evi dence w as insuff icient to s upport the

trial cou rt’s orde r revoking his probation. We disagree. A trial court may re

voke probation and order the imposition of the origina l sentence u pon a fi nd in g b y a

preponderance of the evidence that the person has violated a condition of probation. Tenn. Code Ann. §§ 40-35- 310, -311 . The decision to re voke pro bation re st s within the sound discretion of the trial court. State v. Mitchel l , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of probation and a community

corrections sente

nce is subject to an abuse of discretion standardof review, rather than a de novo standard. State v. Harkins , 811 S.W.2d 79, 82 ( Tenn. 1991). The defendant maintains the evidence was insufficient to support re vocation of his probation because the state failed

to present corroboratingevidence to support his confession. The defendant didnot raise

this issue in the trial court. The uncontradicted testimony presented at

the hearing was that the defendant admitted smoking marijuana and that the offe n se occurre d while he was on probation. We conclude this evidence is suffici en t to support the trial court’s conclusion that the defendant violated his probation by consuming illeg al drugs. See State v. Gabel , 914 S.W.2d 562, 564 (Tenn. Crim. App. 1995). The defendant argues that in commen

ting on th e seriou sness of metha

mphetamin

e and his convicti on in Cumbe

rland County , the tria

l court “ acted a s an inves tigator and prosecutor to build up a case against [him].” We discern no basis for such an alleg ation. Furthermore, the trial court’s-3-

commentsregarding the defe ndant’s conviction in Cumberland County wer e adequately

supported by t he proof present ed at the hearing . Accor

dingly , this arg

ument is without meri

t. III. SENTENCING The defendant contends the trial court erred in ordering him to serve his original sentence

. We disagree. Upon a finding that

a defendant has violated the terms of his or her probation, a trial court may order the defendant

serve the balance of the

original sentence in confinement. See Tenn. Code Ann. §§ 40-35- 310, -311 (d); State v. Hunter , 1 S.W. 3d 643, 647 (T enn. 1999). Furthermore, a defendant who is alr

eady on proba tion is not e

ntitled to a

n addition al gra

nt of prob ation or s ome other form of alternative sentencing. State v. Jeffrey A. Warfie

ld , No. 01C01-9711-CC-00504, 1999 Tenn. Crim. App. LEXI S 115, at *4 (Te nn. Crim. App. Feb. 10, 1999, at Nashville), perm. app. denied(Tenn. 1999). Upon revoking

the defe ndant’s p robation , the tria

l court ha d the authorit

y t o order h

im to serve his orig inal sente

nce. The refore , we conc lude the t rial cou rt did not a

buse its dis cretion

in ordering the de

fendant to serve his original sente

nce in co nfineme

nt. IV. BOND PENDING APP EAL On May 17, 20 02, the defendant filed a notice of appeal a nd a motion for bond pendi n g appeal. On June 20, 2002, the trial court entered an order for bond pending appeal setting the appeal bond at $1,500. In the order, the c ourt noted that “as a conditionof said bond that the defendant be required to repor

t monthly to Michae

l Wright of

P.S.I. , pending

the dispos ition of the

appeal an d that as a further condition of the bond that he shall not otherwise violate the law pending the outcome of his appeal.” The defendant contends the trial court was w ithout juri sdiction to place c onditions o n his bond pending disposition of appeal because his misdemeanor sentence was stay ed once he filed a notice of appeal. He furth er mainta ins the tri al court

was not a uthorized to requir e him to report to a probation officer as a condition of bond pending appeal. However, this issue is moot. This issue should have been presented to this court by motion. SeeTenn. R. App. P. 8(a). Neverth eless, the defendant’s reliance upon State v. Lyons , 29 S.W.3d 48, 50 (Tenn . Crim. App. 1999), is misplaced. He con tends Lyons holds that when a defendant is convicted of a misdemeanor

offense and rec eives pr

obation, t he sente nce is s tay ed pendin g the outcome of the appeal. As noted b y a

panel of this cour t in State v. Sandra Brown , No. M2000-00792-CCA-R3-CD, 2001 Tenn. Crim. App. LEXI S 759, at *8 (Tenn. Crim. Ap p. Sept. 19, 2001, at Nashville), the holding in Lyons involved a direct ap pea l of a sentence, not an appeal of a proba tion revocation order. Accordingly , the holding in Lyons is inapplicable to the case at bar. A tr ial court is authorized to release a defendant on bail pending appellate r eview of a pr ob at io n r ev oc at io n o rd er . T en n. R. Cr im . P . 3 2( g) . A s a co nd it io n o f b on d, a t ri al co ur t m ay1 We note tha t in this court’s order sett ing the defendant ’s bond pendi ng permis sion t o appeal to t he Tennessee Supreme Co urt, we have removed the condition requiri ng the defendant to meet wit h the probation offi cer. -4- [r]elease the defe ndant into

the car e of some

quali fied person or organization responsi ble for supervising the defendant and assisting the defendan t in appearing in court. Such supervisor shall maintain close contact with the defendant, assist the defendant in making arrangements to ap pe ar in court, and, where appropriate, accompany

the defendant to court. The supervisor s hall no t be required to be financi a lly

re sponsible for the defendant, nor to forfeit money in the event the defendant fails to appear in court. The board of probation and parole and its office rs are not to be c onsidered an appr opriate qualifie d orga

nization or

person under this section.

Tenn. Code Ann. § 40-11-116(b)(1) (Supp. 2001) (emphasis added)

. We conclude the trial court had the authority to set bond pending appeal. As to the condition requiring the defendant to meet with the probation officer while on bond, the re cord is unclear as to whether Michael Wright is an officer for the state board of p r obation or a probation officer for a private company . Regardless, this issue is moot except as it relates to this court’s setting bond in the even t of an ap plication for per mission to a

ppeal to t he Tenne ssee Supr

eme Court

. 1 Accord ingly , we aff

irm the jud

gment of the trial court.

____________________________________ JERRY L. SMITH, JUDGE