FILED

October 30, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBER SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805-CC-00134

)

Appellee, )

)

) MADISON COUNTY

VS. )

) HON. WHIT LAFON

MICHAEL D. LOVE, ) JUDGE

)

Appellant. ) (Probation Revocation)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF MADISON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

C. MICHAEL ROBBINS JOHN KNOX WALKUP

46 North Third Street Attorney General and Reporter

Suite 719

Memphis, TN 38103 CLINTON J. MORGAN

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243

JERRY WOODALL

District Attorney General

JAMES W. THOMPSON

Assistant District Attorney General

Lowell Thomas State Office Bldg.

Jackson, TN 38301

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant appeals as of right from the judgment of the trial court

which found him to be in violation of the terms of his probation. He argues that

the trial court erred in ordering the balance of his sentence to be served in

confinem ent. We affirm the judgment of the trial court.

In 1994, the Madison County, Tennessee grand jury indicted the Defendant

on charges of aggravated robbery, conspiracy to com mit aggravated robbery,

possession of a deadly weapon with intent to employ it in the commission of

aggravated robbery, possession of cocaine with intent to sell or deliver, evading

arrest, and contributing to the delinquency of a minor. Subsequently, pursuant

to a plea agreement, the Defendant pleaded guilty to aggravated robbery, a

Class B felony, and misdemeanor possession of cocaine. The plea agreement

called for concurrent sentences of eight years for aggravated robbery and eleven

months and twenty-nine days for the misdemeanor drug charge. One year of the

sentence was ordered to be served in the county workhouse with the balance to

be served in community corrections. By order entered on July 20, 1995, the

balance of the Defendant’s sentence was ordered to be served on probation.

On September 26, 1997, a probation violation warrant was issued, alleging

that the Defendant had violated probation by being arrested for “aggravated

sexual assault of a child” in Texas. The record reflects that the Defendant

subsequently pleaded guilty in Texas to the felony of “indecency with a child by
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exposure.” He received a three-year sentence in Texas which was ordered to be

served on “community supervision.”

On March 10, 1998, after conducting an evidentiary hearing on the

probation violation warrant, the trial court found that the Defendant was in

violation of the terms of his probation. The court ordered the probation revoked

and the balance of the Defendant’s sentence served in the Department of

Correction. It is from the order of the trial court directing that the balance of the

Defendant’s sentence be served in confinement that the Defendant appeals.

When a probation revocation is challenged, the appellate courts have a

limited scope of review. For an appellate court to be warranted in finding a trial

judge erred in determining that a violation has occurred, the record m ust contain

no substantial evidence to support the conclusion of the trial judge. State v.

Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If the violation is so supported by the

record, the judgment of the trial court revoking probation will not be disturbed on

appeal unless it appears that the trial court acted arbitrarily or otherwise abused

its discretion. State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App.

1981).

When a trial judge grants a suspended sentence, that judge demonstrates

a certain amount of confidence that the Defendant will lead a lawful life. When

the Defendant’s subsequent actions violate that confidence, the trial judge again

exercises discretion in determining whether the suspended sentence should be

revoked. Davenport v. State, 381 S.W.2d 276, 279 (Tenn. 1964); Thompson v.

State, 279 S.W.2d 261, 262 (Tenn. 1955). The Defendant’s subsequent actions
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may indicate that the initial decision to suspend the sentence was a mistake. All

probationers are deemed to be on notice that they may not engage in unlawful

activity or otherwise conduct themselves inconsistently with good citizenship if

they are granted probation instead of incarceration. Roberts v. State, 546

S.W.2d 264, 265 (Tenn. Crim. App. 1976).

The Defendant concedes that his felony conviction in Texas constitutes a

violation of the terms of his Tennessee probation. He argues, however, that the

trial judge abused his discretion by ordering the balance of the Defendant’s eightyear sentence to be served in the Department of Correction. He argues that this

Court should remand the case and direct the trial judge to place the Defendant

back on probation. 

A trial court is vested with the statutory authority to “revoke the probation

and suspension of sentence and cause the defendant to commence the

execution of the judgment as originally entered.” Tenn. Code Ann. § 40-35-

311(d). Furthermore, when probation is revoked, “the original judgment so

rendered by the trial judge shall be in full force and effect from the date of the

revocation of such suspension.” Tenn. Code Ann. § 40-35-310. The trial judge

retains the discretionary authority to order the defendant to serve the original

sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

The Defendant, who was already on probation for a felony, committed

another felony. Under these circumstances, the Defendant’s argument that he

is entitled to a second grant of probation is not particularly persuasive. The

testimony given by the Defendant at his revocation hearing demonstrates little,
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if any, assurance that he would be unlikely to violate his probation again were he

allowed to continue to serve his sentence on probation. This was obviously also

the conclusion of the trial judge. Based on our review of this record, we cannot

conclude that the trial judge erred or abused his discretion in ordering the

balance of the Defendant’s sentence to be served in the Department of

Correction. 

The judgment of the trial court is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

JOE G. RILEY, JUDGE