IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 19, 2008

STATE OF TENNESSEE v. JACK E. THOMPSON

Direct Appeal from the Circuit Court for Montgomery County

Nos. 40600485, 40300297 John H. Gasaway, III, Judge

No. M2007-01347-CCA-R3-CD - Filed September 2, 2008

The defendant, Jack E. Thompson, in this consolidated appeal, appeals from one judgment revoking

his probation and another judgment sentencing him to three years to be served consecutively to the

sentence for which his probation was revoked. On appeal, he argues that the trial court abused its

discretion in revoking his probation and ordering him to serve his sentence and that the trial court

erred in enhancing his sentence to three years on his plea of guilty to burglary of a vehicle, a Class

E felony. After review, we affirm both judgments from the trial court.

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

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J.,

and JAMES CURWOOD WITT, JR., J., joined.

Jeffry S. Grimes, Clarksville, Tennessee, for the appellant, Jack Earl Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney

General; Roger Eric Nell, District Attorney General; and John E. Finklea, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The defendant pled guilty on October 16, 2003, to burglary of a vehicle and two counts of

forgery and received an effective six-year sentence on probation. He violated his probation and, on

September 8, 2005, waived his right to a hearing and admitted he had violated his probation. On

December 8, 2005, he was reinstated to probation. On March 20, 2006, a second violation warrant,

which is the subject of this appeal, was issued against the defendant, alleging that he violated the

terms of his probation by committing the offenses of burglary and theft and by failing to report to

his probation officer, pay his supervision fees, and provide proof of payment of court-ordered

restitution. On August 17, 2006, the defendant admitted his violation and pled guilty to a new charge
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of burglary of a vehicle. For the burglary of a vehicle charge, he received a three-year sentence to

be served consecutively to the probation violation. 

During the probation violation hearing, the defendant testified that he had been incarcerated

since February 2006, as a result of his arrest and subsequent guilty plea on a charge of burglary. He

said that his judgment had been impaired at the time he committed the offense because he had a

drinking problem and was under the influence of pain medication for a leg injury sustained in a car

accident. He said that he completed a twenty-eight-day treatment program at the Elam Treatment

Center and that he was routinely tested for both alcohol and drugs. The defendant testified that, if

reinstated to probation, he would be in a rehabilitation program. 

On cross-examination, the defendant testified that he began drinking alcohol at age nine and

taking drugs at age thirteen. He said he had nine prior felonies and six prior misdemeanor

convictions. Following the hearing on December 5, 2006, the trial court ordered the balance of his

original sentence to be served in confinement. 

Analysis

The defendant argues that the court erred in imposing incarceration after the revocation of

his probation. He concedes that the trial court had the option to revoke his probation but argues

that his probation should have been reinstated or, at worst, only extended for two years. 

A trial court may revoke probation and order the imposition of the original sentence upon a

finding, by a preponderance of the evidence, that the person has violated a condition of probation.

T.C.A. §§ 40-35-310, -311. The decision to revoke probation rests within the sound discretion of

the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of

probation is subject to an abuse of discretion standard of review rather than a de novo standard. State

v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is abused only if the record contains no

substantial evidence to support the conclusion of the trial court that a violation of probation has

occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation

need not be established beyond a reasonable doubt, and the evidence need only show that the trial

judge exercised a conscientious and intelligent judgment rather than acted arbitrarily. Gregory, 946

S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

The underlying facts demonstrate that the defendant was placed on probation after

burglarizing a vehicle. While on probation for that crime, he committed another burglary of a

vehicle. His criminal record includes multiple convictions for burglaries and drug offenses. The

defendant acknowledged that he had violated his probation, and he placed the blame for his criminal

conduct on his alcohol dependency. Based on his past criminal record, the trial court found that he

was a threat to society. Here, the record reflects that the trial court did not abuse its discretion by

revoking the defendant’s probation and ordering the defendant to serve his original sentence in

confinement. 
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Next, the defendant argues that the two sentencing enhancement factors and two mitigating

factors found by the trial court cancel each other out. We follow the recent decision of the Tennessee

Supreme Court, which stated: 

Prior to 2005, a defendant was entitled to the presumptive sentence unless the trial

court properly applied statutory enhancement factors. Currently, the trial court “shall

consider, but is not bound by” an “advisory sentencing guideline” that suggests an

adjustment to the defendant’s sentence upon the presence or absence of mitigating

and enhancement factors. [T.C.A.] § 40-35-210(c). Thus, the 2005 revision to the

-210(c) increases the amount of discretion a trial court exercises when imposing a

sentencing term. 

State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). The 2005 revision was made effective for

crimes committed on or after June 7, 2005.

The supreme court in Carter further stated that “[a]s to the standard of review, the Sentencing

Act provides that, ‘[w]hen reviewing sentencing issues raised [by a defendant] pursuant to [this

section], including the granting or denial of probation and the length of sentence, the appellate court

shall conduct a de novo review on the record of the issues. The review shall be conducted with a

presumption that the determinations made by the court from which the appeal is taken are correct.’”

T.C.A. § 40-35-401(d); see also T.C.A. § 40-35-402(d); State v. Carter, 254 S.W.3d at 344 (Tenn.

2008).

The weight afforded the various mitigating and enhancement factors is “left to the trial

court’s sound discretion.” Because the Sentencing Act has been revised to render these factors

merely advisory, that discretion has been broadened. Thus, even if a trial court recognizes and

enunciates several applicable enhancement factors, it does not abuse its discretion if it does not

increase the sentence beyond the minimum on the basis of those factors. Similarly, if the trial court

recognizes and enunciates several applicable mitigating factors, it does not abuse its discretion if it

does not reduce the sentence from the maximum on the basis of those factors. The appellate courts

are therefore left with a narrower set of circumstances in which they might find that a trial court has

abused its discretion in setting the length of a defendant’s sentence.” Id. at 345-46. Therefore,

appellate courts are bound by the decision of the trial court as to the sentence length as long “as it

is imposed in a manner consistent with the purposes and principles set out in sections -102 and -103

of the Sentencing Act.” Id.

The trial court was within its discretion in imposing a three-year sentence, and the defendant

has not demonstrated that the court erred in imposing said sentence. Therefore, he is entitled to no

relief on this issue.

As to the issue of his incarceration, the trial court was within its discretion in imposing a

sentence of confinement after it found the defendant had violated his probation. See T.C.A. §§ 40-

35-310, -311. The record reflects that the defendant violated his probation and committed a

subsequent law violation while on probation. Tennessee Code Annotated section 40-35-115(b)(6)

provides that a trial court “may order sentences to run consecutively if the court finds by a
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preponderance of the evidence that . . . the defendant is sentenced for an offense committed while

on probation.” Here, the defendant acknowledged he pled guilty to a new law violation which gave

the trial court authority to sentence him to a consecutive sentence in confinement.

Conclusion

Based on the foregoing and the record as a whole, we conclude that no error exists and affirm

the judgments from the trial court.

___________________________________ 

JOHN EVERETT WILLIAMS, JUDGE