# FILED October 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON SEPTEMBE R SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805- CC-00134 ) Appellee, ) ) ) MADISON COUNTY VS. ) ) HON. WHI T LAF ON MICHAEL D. LOVE, ) JUDGE ) Appe llant. ) (Probation Revocation)

ON APPEA L FROM THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : C. MI CHAEL ROBBI NS JOHN KNOX WALKUP 46 North Third St reet Attorney Generaland Reporter Suite 719 Memphis, TN 38103 CLINTON J. MORGAN Assistant Attorney General 425 5th Avenu e North Nashvill e, TN 37243 JERRY W OODALL Distri ct Attor ney General JAMES W. TH OMPSON Assistant Distri ct Attor ney General Lowell Thomas State Off ice Bldg. Jackson, TN 38301
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defe ndant appeals as of right from the judg ment of the trial cou rt which found him to bein viol ation of t he terms of hi s probation. He argues that the tri al court erred i n ordering the balance of his sentence to be se rved i n confinem ent. W e affirm the judgm ent of the tria l court.

In 1994, the Mad ison County, Tennessee gr and jury i ndicted t he Defendant on c ha rges of aggra vated robbe ry, conspiracy to com mit aggravate d robbery, possession of a dead ly weapo n with inten t to emp lo y it i n the commission of aggravated robbery, possession of cocaine wit h intent to sell or

deliver , evading arrest, and contri buting to the delinquen cy of a minor. Su bsequen tly, pursuant to a plea agreement, the Defendant pleaded g uilty to aggra vated rob bery, a Class B felony, and misdemeanor possession of cocaine. The pl ea agreement called for concurr

ent sentencesof eight years for agg ravated robbe ry and eleven months and twenty- nine days for the misdemeanordrug charge. One year of the sentence was ordered to beserved in the coun ty workho use with th e balan ce to be served in co mmunity correct ions. By or der entered on July 20, 1995, t he balance of t he Defendant’s s entence was ordered to be served on pr obation.

On September 26, 1997, a probation violat ion warrant was issued, al leging thatthe Defe ndant h ad viol ated probati on by being arr ested for “aggravated sexual assau lt o f a child” in Texas. The record refl ects that the Defendant subs eque ntly pleaded guil ty in Texas t o the felo ny of “indecency wi th a chil d by-3-

exposu re.” He received athree-year sentence in Texas which was ordered to be served o n “com munity s upervisio n.”

On March 10, 199 8, a fter cond ucting an evi dentiary hearing on t he p robatio n violation warra nt, the tria l court fo und th at the D efend ant wa s in violat ion of the te rms o f his probation. Th e court ordered the pr obation rev

oked and the balance of

the Defendant’ s sentence served in the Depart ment o f Correction. It is

from the order

of the trial court dir

ecting t hat the bal ance of the Defendant’s sentence be served in confinement that the Defendant appeals.

When a probation revocati on is chall enged, the appel late cour ts have a limitedscope of revi ew. For an appell ate court t o be warranted i n findin g 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 viol ation is

so supported by the record, the judgment of the tri al court revoking pr obation wil l not be di sturbed on appeal unless it appears that thetrialcourt acte d arbitr arily or otherwi se abused its discretion
. State v. Williamson , 619 S.W.2d 145, 146 (Tenn. Cr im. App. 1981).

When a trialjudge grants a suspended sentence, thatjudge demonstrates a certain a mount of confid ence that the Defe ndan t will lead a lawf ul li fe. When the Defendant’s sub sequent acti ons violate that conf idence, t he trialjudge again exercisesdiscreti on in determi ning 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 sub sequent acti ons-4-

may indicate that theinitialdecision to suspend the sentence was a mista ke. All probationers are deemed t o be on notice t hat they may not engage in unlawf ul activity or othe rwise c ondu ct them selves incon sisten tly with go od citize nship if theyare granted p ro batio 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 conv iction in Texas constitutes a violat ion of the terms of his Tennessee probat ion. He argues, however, t hat the trialjudge abused his discr etion by or

dering the bal ance of the Defe ndant’s e ightyearsentence to be ser ved in the Depar

tment of Correcti on. He ar gues that this Cou rt shou ld remand the case and dir ect the trialjudge to pl ace the Defendant back o n proba tion.

A trial court is ves ted with the statutory au thority to “revok e the probati on and suspension of s entence and cause the defendant to commence the execution of the j udgment as origi nally entered.” Tenn. Code Ann. § 40 - 35- 311(d). Furthermore, when prob ation is revoked, “the originaljudgment so rendered by the tr ial judge sh all be i n full force and eff ect from the d ate of the revocati on of such suspension. ” Tenn. Code Ann. § 40-35- 310. The trialjudge retainsthe discr

etionary authorit

y to order

the defendant

to serve t he original senten ce. See State v. Duke , 902 S.W .2d 424, 427 (Tenn. Crim . App. 1995 ).

The Defendant, who was already on pr obation for

a felony, committed another felony. Under these circumstances, the Defendant’ s argument that he is entitl ed to a second grant of pr obation i s not parti cularly persuasive. The testimony

given by t he Defendant at hi s revocati on hearing demonstr ates li ttle,-5-

if any, assurancethathe wo uld be unlike ly to violat e his probation agai n were he allowed to contin ue to s erve h is sentence on probation. This was obviously also the conclusion of

the tri al judge. Based on our revi ew of this record, we cannot conclude that the t rial j udge erred or abused his discr et ion in ordering t he balance of the De fe ndan t’s sentence to be servedin the Depart ment of Correc tion.
The judgment of the t rial cour t is af firmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ JOE G. RILE Y, J UDGE