# FILED
September 30, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE AUGUST 1997 SESSION
STATE OF TENNESSEE, * * Appellee, * VS. * * W AYNE MCDONALD, * * Appellant. *

* C.C.A. # 03C0 1-9611-CR- 00414

McMINN COUNT Y Hon. R. Steven Bebb, Judge (Probation R evocation)

For Appellant : Charles Corn Distric t Public Defender 10th Judicial District P.O. Box 1453 Cleveland, TN 37364-1453 For Appellee: Charles W. Burson Attorney Gen eral & Repor ter Timothy F. Behan Assistant Att orney Gener al 450 Jame s Rob erts on Pa rkway Nashvil le, TN 37243-0493 Jerry Estes Distric t Attorney General 10th Judicial District Washington Avenue Athens, TN 37303

OPINION FILE D:

AFFIRMED
GARY R. WADE, JUDGE1 The range of pun ishment for grand l arcenywas thr ee to t en year s. Tenn. Code Ann. § 39- 3- 1104 (1982 r epl. ). The range was t he same for embezzl ement. Tenn. Code Ann. § 39-3- 1121 (1982 repl.). 2 OPINION On August 10, 1 984, the defendant, Wayne McDonald, was conv icted of embezzlement and larcen y and sentenced to two consecutive five-year terms. 1 The trial cour

t granted the defendant full probation through Aug ust 10, 1994. On February 12, 1993, after one or more probation v iolations, t he defendant's probati on was ex tended three y ears, presumabl y throug h August 10, 1997 . On July 8, 1996, the trial court revok

ed probation w hen the defendant was convicted of forgery an d failed to pay r

estitution as required b y the pri or order. The t rial court ordered both five-year consecutive sentences, a tot al of ten years , to be execut ed.
In this appeal of right, the de fendant claims that t he trial cour t erred by revoking probation. We affirm.

At the revocation hearing , it was conceded that the d efendant had failed to pay r

estitution and h ad a new conv iction for forg ery. Non etheless, the defendant argued that he should not be s entenced to incarceration becaus e he was the sole caret aker of his il l, elderly mother. The defendant test ified about the severity and duration of his

mother's il lness and clai med that he was forced to commit forgery

in order to pay for his mot her's medical care. The defendant cl aimed that his ow n son had stolen $ 2,800 from him.

Lebron Smith, the de fendant's proba tion officer, testif ied that he spoke with an el derly-s ounding woman over the t elephone who i dentified herself as the defendant's mother. H e testified that s he claimed to be i n poor health and n eeded her son for suppor

t.3 The trial cour

t found that the defendant had no hesitation about violatin g the law , failed to inform hi s probation officer of his forgery

convicti on, and had failed to comply

with the terms of his prob ation. The tria l court noted t hat three years before, the def endant had a proba tion revocation hearing based on the f ailure to pay $500 per

month restituti on; afterward, the amount of restit ution was reduced to $333 per month, an amount the defendant agreed he could afford to pay . The defendant failed to pay restitutio n under the rev ised pay s chedule.

W hen a pro bati on re vocat ion is chal lenge d, th e app ella te co urts have a limited scope of review. If the trial judge finds b y a preponderance of the evidence "that the defendant has v iolated the condi tions of his pr obation," probati on may be revoked. Tenn. Code Ann. § 40-35 -311(d). This decision to r

evoke a susp ended sentence rests

in the sound di scretion of the t rial court . The Sentencing Commission Comment s to Section 40- 35-310 provi de that "[u]pon rev ocation, the original sentence imposed can be placed into effect." The determination by the tri al court, if conscientiously made, is ent itled to an affirma nce; the record must merely demonstrate that the re is subst antial evi dence to support its conclus ions. Stat e v. Delp , 614 S.W.2d 395, 398 (Tenn. Crim. App . 1980); see also State v. Williamson , 619 S.W.2d 145, 147 (Tenn. Crim. App. 1981).

On ap peal , thefind ing s of t he tr ial cour t are ent itl ed tothe weig ht of a jury verdict, and the defendant ha s the burden to demon strate that the record contains no substantial ev idence to suppor t the finding of the trial cour t that a violatio n of the conditions of probation has occ urred. State v. W all , 909 S.W.2d 8, 9-10 (Tenn. Cr im. App. 1994); State v. Ha rkins , 811 S.W.2d 79, 82 (Tenn. 1991). Upon a violation of probation, "the trial judge shall have the right by order duly entered upon the minut es of [the] court, to revoke t he probation and s uspension of2 "The court s may take ju dici al not ice ofthe court r ecords i n an earl ier proceedi ng of t he same cas e an d the action s of th e co urts th ereo n." De lbridge v. State , 742 S.W .2d 2 66, 2 67 (T enn . 198 7). In a ddi ti on, appel la te c ourt s are aut hori zed to s uppl ement i ncomplet e rec ords. Tenn. R. App. P. 24(e). Itis i nappropri ate, however, for our court to do t he fact ual i nvesti gati on necessary to det ermine the te rm s of th e T exa s jud gm ent. 4 sentence and cause the defendant to commence the execution of the judgment as original ly entered, or otherw ise in accor dance with § 40-35-310 .... " Tenn. Code Ann. § 40-35-311( d).

In our vi ew, the tr ial court di d not abuse its discretion. There was clearly sufficient evi dence to support the trial court's determi nation that the ter ms of probation had been v iolated.

There are two issues, however, w hich were not raised by either party

. First, the defendant was sent enced to two, five-y ear sentences. They were ordered to be consecutiv

e. At first g lance, it would appear that on e of the sentences had expired by

the time the tr ial court r evoked probat ion. At our r equest, the record on appeal was s upplemented wi th copies of the j udgment forms. These do cuments confirm that the thes e sentences were to "be serv ed consecutive with ... Texas Distr ict Co urt No . 180 ." W itho ut kn owing wh en th e Te xas se nten ce exp ired , we cannot determine w hether either of the defendant's five-year sentenc es had expir ed before the revocation of probation. 2 If the defend ant had served his entire probationary

term on one of the conv ictions, the trial judg e would have been without authority to order ser

vice of the ex pired sentence; Tenn. Code Ann. § 40- 35-310 provides authority to revoke o nly duri ng the "time w hich was directed and or dered by the court for suc h suspension." See also Rowell v. Dutton , 688 S.W.2d 474, 477 (Tenn. Crim. App. 1985 ) (holding that habeas corpus relief was approp riate where the Governor

had "exerci se[d] his rev ocation authori ty over

a commutee after the expirati on of his sentence.") Yet this record does n ot provide us with t he5 information necess ary to make an assessment on th at issue.

A second observ

ation relates

to the Februar

y 12, 1993, ex

tension of the defendant's probati on for a period of three years. That extension exceeded the authority vested in t he trial cour t "at the conclus ion of a probation r evocation hearing, the court shall have the author ity to ex tend the defendant's per iod of probation super

vision for any period not in excess of two (2) years ." Tenn. Code Ann. § 40-35-308 (c) (emphasis ad ded). Because, however, the defe ndant's probation v iolations oc curred pri or to the July 8, 1996, revocation hearing , within the two year s authoriz ed by statute, the trial court acted in compliance w ith the law

.
Accordingl y, the judg ment of the trial court is affirmed.

_________

________________________ Gary R. W ade, Ju dge CONCUR:

_____________________________ Paul G. S umme rs, Judge

_____________________________ W illiam M. B arker, Ju dge