IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE v. FRANKLIN JAMES HOWE

Appeal from the Criminal Court for Hamilton County

No. 298289 Thomas C. Greenholtz, Judge

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No. E2017-01838-CCA-R3-CD

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The Defendant, Franklin James Howe, appeals the Hamilton County Criminal Court’s 

order revoking his probation and ordering him to serve his sentence in confinement. The 

State has filed a motion to affirm the trial court’s order pursuant to Tennessee Court of 

Criminal Appeals Rule 20. Following our review, we conclude that the State’s motion is 

well-taken and affirm the order of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

Pursuant to Rule 20, Rules of the Court of Criminal Appeals

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which NORMA 

MCGEE OGLE and D. KELLY THOMAS, JR., JJ., joined.

Kristen D. Williams, Chattanooga, Tennessee, for the appellant, Franklin James Howe.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;

Neal Pinkston, District Attorney General; and Ancharlene Davis, Assistant District 

Attorney General, for the appellee, State of Tennessee.

MEMORANDUM OPINION

On April 20, 2016, a Hamilton County grand jury charged the Defendant with one 

count of aggravated burglary and one count of theft of property valued at $500 or less. 

On December 9, 2016, the Defendant pleaded guilty to one count of aggravated criminal 

trespass and one count of theft of property valued at $500 or less. Pursuant to the plea 

agreement, the trial court imposed consecutive sentences of eleven months and twentynine days to be served on probation through the mental health court program. On January 

9, 2017, a probation violation report was filed alleging that the Defendant failed to report 

to probation within seventy-two hours of his release. On February 9, 2017, an addendum 

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to the violation report was filed alleging that the Defendant failed to report to orientation 

and failed a drug screen by testing positive for marijuana use. On February 22, 2017, the 

trial court terminated the Defendant’s participation in the mental health court program. 

On May 19, 2017, the trial court partially revoked the Defendant’s probation and 

reinstated him to probation effective May 31, 2017. On June 6, 2017, a probation 

violation report was filed alleging that the Defendant failed to report to probation within 

seventy-two hours of his May 31 release. On August 18, 2017, the trial court revoked the 

Defendant’s probation and ordered him to confinement for the service of the balance of 

his sentence. 1

On appeal, the Defendant contends that the trial court abused its discretion by not 

reinstating him to probation because the Defendant did not reoffend and was not hiding. 

The State argues that the trial court properly ordered execution of the sentence as 

originally imposed based upon the Defendant’s repeated refusal to report to probation or 

otherwise comply with the conditions of release.

At the August 14, 2018 hearing, the Defendant conceded that he failed to report to 

probation within the time required by the conditions of his release. He explained that 

once he missed his first report date, he did not report because “I had already missed. And 

I was like, well, they’re just going to lock me up if I go in. So I was like, you know, 

screw it.” The Defendant stated that he experienced difficulty receiving or taking his 

prescribed medication, which also interfered with his ability to comply with the 

conditions of probation. He assured the trial court, however, that he had changed his 

attitude and would “make sure that I reported this afternoon” if reinstated on probation. 

The court ruled that by absconding the Defendant had violated “the perhaps number one 

obligation of supervised probation.” The court found that the Defendant had willfully 

refused to report and ordered the sentences to be served in confinement. 

Our supreme court has concluded that a trial court’s decision to revoke a 

defendant’s probation “will not be disturbed on appeal unless . . . there has been an abuse 

of discretion.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (citing State v. 

Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981) ). An abuse of discretion has 

been established when the “record contains no substantial evidence to support the 

conclusion of the trial judge that a violation of the conditions of probation has occurred.”

State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980); see State v. Shaffer, 45 

S.W.3d 553, 554 (Tenn. 2001); State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). When 

a trial court finds by a preponderance of the evidence that a defendant has violated the 

 

1

 From judgment through the second revocation order, the trial court credited the 

Defendant with 360 days’ service in confinement. The Defendant has now satisfied service of

the sentences.
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conditions of probation, the court “shall have the right . . . to revoke the probation.” 

T.C.A. § 40-35-311(e)(1) (2014). After revoking a defendant’s probation, the trial court 

may return a defendant to probation with modified conditions as necessary, extend the 

period of probation by no more than two years, order a period of confinement, or order 

the defendant’s sentence into execution as originally entered. Id. §§ 40-35-308(a), (c), -

310 (2014). “In probation revocation hearings, the credibility of witnesses is for the 

determination of the trial judge.” Carver v. State, 570 S.W.2d 872, 875 (Tenn. Crim. 

App. 1978) (citing Bledsoe v. State, 387 S.W.2d 811, 814 (Tenn. 1965)).

We conclude that the record supports the trial court’s finding that the Defendant 

violated the conditions of his probation and that the court did not abuse its discretion by 

revoking the Defendant’s probation. See T.C.A. § 40-35-311(e)(1). Once the court 

revoked the Defendant’s probation, it had the authority to order the Defendant to serve 

his sentence in confinement. See id. §§ 40-35-310. The Defendant is not entitled to 

relief.

Accordingly, we affirm the judgment of the trial court pursuant to Tennessee 

Court of Criminal Appeals Rule 20.

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ROBERT H. MONTGOMERY, JR, JUDGE