# FILED
December 15, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OC

TOBER 1997 SESSION

STATE OF TENN ESSEE, ) C.C.A. No. 02C01-9705- CC-00184 Appellee, ) ) Hardeman County V. ) ) Honorable Jon K erry Blackwood, Judge ) JAMES DA

NTES, ) ) (Revocation of Community Corrections) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Clifford K. McGown, Jr. John Knox Walkup Attorne y at Law Attorney General & Reporter 113 North Court Square P.O. Box 26 Kenneth W. Rucker Waverly, TN 37185 Assistant Attorney Gener al (On Appe al Only) Criminal Justice Div ision 425 5th Avenue North Gary F. Antrican Nashville, TN 37243-0493 District Public Defender Elizabeth T. Rice Jeannie Kaess District Attorney General Assistant District P ublic Defender 118 East Market Street Jerry Norwood P.O. Box 700 Assistant District A ttorney General Somerville, TN 38068 302 Market Street (At Trial) Somerville, TN 38068

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, James Dantes, pled g uilty to two counts of violating the Motor Vehicle Habitual Offenders Act. He received an eff ective sentence of six years incarceration as a multiple offender. Before the appellant reported to jail, he again violated the M otor Vehicle Habitual Offenders A ct. He was sentenced to one year and eight months incarceration, whic h was to be served
consecu tively to hi s previous sentenc es. Ther efore, h e received a total ef fective sentence of seven years and e ight months.
Thereafter, the appellant signed a behavioral contract ag reement and entered into the community cor rections program. How ever, the appellant violated the conditions of thi s agreement. As a result of this violation, the tr ial court revoked the appellant’s community correcti ons sentence and resentenced him to an effective sentence of nine years. He appea ls the revocation of his community corrections s entence and the increase of his or iginal sentence. Upon review, we affirm.
The appellant contends that the rev ocation of his community corr ections sentence should be set aside because the trial court fa iled to specify the precise condition or term of the agreement that was violated. For this Court to ove rturn a community corrections r evocation, we must find that the trial judge abused hi s or her discretion. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is apparent w hen the record contains no subs tantial evidence to support the conclusion that a violation of the commun ity corrections sentence has occurred. Id. In this case, howev er, we find that the record is replete with evidence to support the rev ocation.

The appellant’s behavioral contract agreement required him to make payments for costs or fines, c omplete 100 hours of community serv ice, and1 The court found that the appellant had shown an unwi llingness to comply wit h the conditions of a sentence involving rel ease into the community. Tenn. Code Ann. § 40-35-114(8) (1990).

2 The trial court’s wri

tten order state

s that no mitigati on evidence exists. However, the transcript reveals that the trial court considered the f act that the appel lant’s conduct neither caused nor threatened se rious bodily injury. -3- abide by all rules and r egulations of the program. The record reveals that the appellant failed to make the requi red payments for court costs or fines. Appellant repeatedly failed t o attend his weekly s

cheduled meetings; and he was observed by his case worker in an intox icated state. The record contains substantial evidence to s upport the trial court’s determination that the appellant violated the conditions of his community corrections sentence. Th is issue is without merit.
The appellant next contends that the trial court erred in increasing his original sentence from sev en years and eight months t o an effective sentence of nine years. The state arg ues that once a community corr ections sentence has been revoked, the trial c ourt can conduct a sentencing hearing and sentence the appellant to a sentence that ex ceeds the length of the initial sentence.
Tennessee Code Annotated § 40-36-106(e) (3) (Supp. 1996) grants a trial judge the authority to r esentence an appellant in exc ess of his or her origi nal sentence. When a trial court utilizes this procedure , a sentencing hearing should be conducted. State v. Ervin , 939 S.W.2d 581 (Tenn. Crim. App. 1996).

The record reveals that th e trial court considere d the testimony at the revocation hearing, t he previous sentencing hearing, the presentence re port, and the entire record. The court found that new evidence of enhancement 1 existed and found no additional mitigation evidence. Therefore, finding t hat

the enhancement factors outweig hed the only evidence of miti gation, 2 the court increased the appellant’s effectiv e sentence by one year and four months.-4- We find that the increase in the appellant’s sent ence was warranted. The appellant has failed to overcome the presumption of correctness. This issue is without merit.
Accordingly, w

e find no error of law mandating reversal. The judgment of the trial court is affirmed.

__________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

__________________________ JOHN H. Peay, Judge

__________________________ DAVID G. HAYES, Jud ge