### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs J anuary 16, 2002
STATE OF TENNESSEE v. ARCHIE J UNIOR WEATHERFORD

Direct Appeal from the Criminal Court for Sumner County No. CR859-1998 Jane Wheatcraft, Judge

No. M2001-02138-CCA-R3-CD - filed Marc h 27, 2002

Defend ant, Archie J

unior We atherf

ord, app eals the Sumner County Criminal Court’s revocation of his probationary sentence. Following a review of the r ecord, we affirm the judgment of the trial court. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t Affir med.

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which J ERRY L. S MITH , and R OBERT W. W EDEMEYER , JJ., joined.

David Allen Doyle, District Public Defender, Gallatin, Tennessee (on a ppeal) and Edgar Taylor, Hartsville, Tennessee (at trial) for the appe llant, Archie Junior Weatherford.

Paul G. Summers , Attorne y Gener al and Re

porter; P atricia

C. Kussman

n, Ass ist ant Attorney Genera l; Lawrence Ray Whitley, Distr ict Attorney General; and Thomas Dean, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Ba

ckground

On March 19, 1999 , Defendan t pled guilty to the offense of theft of property more than $ 10, 000 in value, a Class C felony. Pursuant to the plea agreement, the trial court sentenc ed Defendant

to four ye ars, with

sixty days to be ser

ved in the Smith County j ail and the remain ing time to be served on probation.

On January 31, 2001, the trial court issued a probation violation warrant based on allegations that (1) Defendant had been arr ested for driving while license revoked, second offense, and resisting arrest; (2) he failed to appear in court on Januar y 8, 2001, as ordered, and a capias had been issued; (3) cha rges we re pendi ng agains t Defend ant for r eckless endange

rment an d vandali sm; and (4) he-2-

had absconded. The warrant further a l leged that all charges originated in Smith County and that Def endant’s then-present whereabouts were unknown. On April 3, 2001, Defendan t wa s apprehended, and on May 7, 2001, he pled guilty to resisting arrest and driving without a license. (The charge

of drivin g while lic ense revoked, se cond off ense, wa s reduce d to driving without a license by plea agreement.) The cha rges for reckle ss endang erment a

nd vanda lism were dismissed.

At the probation violation hearing on May 21, 2001, Donnie Webb testified that Defendant had genera

lly complied

with the te

rms of his p

robation until Nove

mber 9, 20 00, the da

te of his last report to Webb. Following Defendant’s apparent disappearance, Webb spent part of November and all of December searching for him. Defendant

had lived with his family while on probation. The family members claimed no knowledge of his whereabouts. According to his probation agreem ent, Defendant

was to report

to Webb once a month, but he had neglected to do so even once during the time period extending from his last report on November 9, 2000 until April 3, 2001, when Defendant was apprehended. Webb testified that, from the point at which he began supervising Defendant’s probation in June 199 9 until Nove mber 2000 , Defen dant’s c ompli ance with t he terms o f his probation had bee

n “prett y fair.”Although D efenda nt admitte d having so me minor pr oblems wit

h employment

and paying his fee s, he had reporte d regula

rly, pass ed his d

rug sc reens, and had “no
new arrests.” (Webb’ s stateme nt regar ding the la

ck of new arrestsis contradicted by the judgment forms relating to Defendant’s convictions for driving without a license and resisting arrest, which list the offense dates for these crimes as A ugust 19, 1999 and January 8, 2000, respectively.) Webb also testifie d that Def

endant c laimed to h ave can cer. We bb reque sted that D efenda nt give him a doctor’s statement to that effect, but had receive d nothing thus far.

Defe ndant testified that he quit reporting to Webb in November 2000 because his doctor discovered

a cyst on his pancreas the

previous month. He claimed that the diagnosis “confus ed” him and he did

not know what to do. Defendant explained that fourteen yea rs prior, he was diagnosed with Hodgkin’ s disease

(a type o f cance

r), which had spre ad throug hout his bod

y. Unti l the cys t appeared, the can cer was believed to be in remission. At the time of the hearing, De fendant was uncert ain whether

the cyst w as maligna

nt. He did

not keep h

is follow- up appoin

tment with

th e doctor because he did not want to undergo further ra diation treatment. Since then, he had decided that he wanted to live. Defendant also stated that he had suffered two heart attacks in February (the year was not specified). Defenda nt was thirty-four years old at the time of the hearing.

Defendant

conceded that

he did not

give Webb any documentation concerning his medical condition and that

he alsohad none

to prese nt at the hearing. Defend ant also a dmitted tha

t after h is cyst was discovered in October, he quit workingand began using cocaine because he had “given up” and “didn’t know what to do.” Defendant acknowledge d his pl eas of guilty t o driving w ithout a license and resisting arrest. He testified that he did not app ear in c ourt on Ja nuary 8, 2001 bec ause he knew he “was going to get violated.”

At the conclusion of the hearing, the trial court remarke d that a community-based sentence
was “inappropriate” in this case. The trial court found that De fendant had pled guilty to new charges since his sentence was imposed and that he had failed to report to his probation officer . Accordingly,-3-

the trial court revoked Defendant’s probationar y sentence and ordered that he serve the remainder of his sentence in the Tennessee Department of Corr ection. The trial court concluded that Defenda nt had violated the terms and conditions of his probation in a subsequent order filed May 25, 2001. Analysis

Defendant

contends that th e t rial court failed to exercise a conscie ntious and intelligent judgmentwhen it found that he had violated the terms an d c onditions of his probation by a preponderance

of the evidence. Defendant also maintains that his satisfactory compliance with the probat ionary terms and conditions during the time period from June 1999 until November 2000 justifies the grant of an additional opportunity to rehabilitate himself. We disagree. According to statute, a trial court may revoke a sentence of probation upon finding by a preponderance

of the evidence tha

t the defendant has violated the conditions of his release. See Tenn. Code Ann. § 40-35-311(e) (Supp. 2000). Once t he trial cou

rt makes s uch a fin ding, it is vested with the st

atutory a uthority to “revoke the proba

tion and su spension o f sentence and c ause the d efendant to co mmence the execution of the judgment as originally entered . . . .” Id. 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 . . . .” Id. § 40-35-310 (1997). The trial judge retains the discretionary authority to order the defe ndant to serve the original sentence. See State v. Duke , 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

On appeal, a revoc ation will b e upheld absent an abuse of discretion. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). There is no abuse of discretion, unless the reviewing court finds that the record

contains no substan

tial evide nce to sup

port the c onclusion

of the tri a l judge t hat a violation of the terms of probation has occurred. Id. Relief will be g ranted on ly when the trial court’s logic and reasoning were improper when viewed in the light of the factual circumstances and the legal principles involved. State v. Shaffer , 45 S.W.3d 553, 555 (Tenn. 2001).

In this case, De fendant conced ed that he voluntarily stopped reporting to his probation officer after November 9, 2000. Defendant also admits that he pled guilty to two misdemeanor offens e s committed while on probation. Defend ant’s sta tements w ere cor

roborat ed by the j udgment f

orms and the testimony of his proba t ion officer. Taken together, this proof clear ly supports the trial court’s finding that Defendant violated the terms of probation by a preponderance of the evidence

. Thus, we find that the trial court did not abuse its discretion. According to statute, the trial court was duly authorized to also impose the original sentence upon revocation of probation. Defendant is not entitled to relief on this issue.
Conclusion For the forgoing reasons, the judgment of the trial court is AFFIRMED.-4- ____________________________________ THOMAS T. WOODALL, JUDGE