FILED

July 28, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MAY 1998 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) C.C.A.No. 03C01-9709-CC-00406

)

vs. ) Blount County

)

TROY MCLEMORE, ) Hon. D. Kelly Thomas, Jr., Judge 

)

Appellant. ) (Probation Revocation)

)

FOR THE APPELLANT: FOR THE APPELLEE:

RAYMOND MACK GARNER JOHN KNOX WALKUP

District Public Defender Attorney General & Reporter

 

STACEY NORDQUIST CLINTON J. MORGAN

Asst. District Public Defender Asst. Attorney General

419 High St. 425 Fifth Ave. N., 2d Floor

Maryville, TN 37804 Nashville, TN 37243

GERALD L. GULLEY, JR. (appeal only) MICHAEL L. FLYNN

Attorney at Law District Attorney General

P.O. Box 1708

Knoxville, TN 37901-1708 EDWARD P. BAILEY, JR.

Asst. District Attorney General

363 Court St.

Maryville, TN 37804

OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE
1The defendant would be allowed to participate in the work release

program.

2

OPINION

The defendant, Troy McLemore, appeals the Blount County Circuit

Court's revocation of his probationary sentence for the crimes of burglary and theft

of property. He was convicted of those crimes in 1994 following his guilty pleas and

received an effective two year sentence of confinement and probation. His

sentence was extended by consent for an additional year when he failed to satisfy

the financial obligations imposed with the original sentence. During this extended

term, a violation summons issued charging the defendant with using drugs and

failing to pay his court costs, restitution and probation fees. The trial court found

that the defendant had violated the terms of his probationary sentence and ordered

him to serve five months and six days in the county jail1 followed by six months of

intensive probation with drug treatment. In this appeal, he contends (1) there is no

substantial evidence to support the trial court's revocation of probation, and (2) the

trial court erred in not allowing him to serve his sentence in intensive probation.

Having reviewed the record and the parties' briefs, we affirm the judgment of the

trial court.

I

The first issue is whether the trial court properly found that the

defendant had violated the conditions of his probation. The standard of review upon

appeal of an order revoking probation is the abuse of discretion standard. State v.

Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order for an abuse of discretion to

occur, the reviewing court must find that the record contains no substantial evidence

sufficient to support the conclusion of the trial judge that the violation of the terms

of probation has occurred. Harkins, 811 S.W.2d at 82; State v. Delp, 614 S.W.2d

395, 398 (Tenn. Crim. App. 1980). The trial court is required only to find that the
3

violation of probation occurred by a preponderance of the evidence. Tenn. Code

Ann. § 40-35-311(d) (1997). Upon a finding of a violation, the trial court is vested

with the statutory authority to "revoke 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) (1997). Furthermore, when probation

is revoked, "in such cases 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 (1997). 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). 

In this case, the defendant admitted that he had used illegal drugs.

Such use was in violation of the terms of his probationary sentence. This alone is

substantial evidence of record to support the trial court's revocation order. See

State v. Michael Emler, No. 01C01-9512-CC-00424, slip op. at 4 (Tenn. Crim. App.,

Nashville, Nov. 27, 1996) (where the defendant admits violation of the terms of

probation, revocation by the trial court is not arbitrary or capricious); see also State

v. Mitzi Ann Boyd, No. 03C01-9508-CC-00246, slip op. at 3 (Tenn. Crim. App.,

Knoxville, Nov. 1, 1996). After the defendant failed a drug screen, he claimed to

have contacted two rehabilitation programs but determined he could afford neither.

His probation officer told him about two other programs which he would be able to

afford, but he did not bother to contact them. He admitted using marijuana only a

few days before the revocation hearing. 

In short, the defendant was given a favorable form of alternative

sentencing and failed to abide by the rules imposed upon him. We cannot say the

trial court abused its discretion in revoking probation for the defendant's illicit drug

use.
4

II

The defendant's second issue is whether the trial court erred in

ordering him to serve a portion of his sentence in the county jail, rather than giving

him a non-incarcerative sentence of intensive probation or Community Corrections.

He claims he is not a proper candidate for incarceration because the record does

not support conclusions that his incarceration is necessary to protect the public from

him and that there is a need for deterrence. See Tenn. Code Ann. § 40-35-103(1)

(1997).

The statute provides that upon the trial court's discretionary decision

to revoke a defendant's probationary sentence, "the original judgment so rendered

by the trial judge shall be in full force and effect . . . ." Tenn. Code Ann. § 40-35-

310 (1997). The Sentencing Commission Comments imply that the trial court has

the discretion to place a lesser sentence into effect if it deems that course of action

to be appropriate. See Tenn. Code Ann. § 40-35-310, Sentencing Comm'n

Comments (1997) ("Upon revocation, the original sentence imposedcan be placed

into effect.") (emphasis added); State v. Marty Miller, No. 03C01-9602-CC-00056,

slip op. at 8 (Tenn. Crim. App., Knoxville, Mar. 4, 1997); State v. Melvin Griffin,

01C01-9503-CC-00090, slip op. at 2 (Tenn. Crim. App., Nashville, Nov. 16, 1995);

see also Tenn. Code Ann. § 40-35-311 (d) (1997) (upon finding that defendant has

violated conditions of probation and suspension, trial court "shall have the right . .

. to revoke the probation and suspension of sentence and cause the defendant to

commence the execution of the judgment as originally entered, or otherwise in

accordance with § 40-35-310"). Contrary to the defendant's assertion, the court is

not required at this stage to reconsider the principles of sentencing after finding that

the defendant has violated the terms of probation. State v. Yvonne Burnette, No.

03C01-9608-CR-00314, slip op. at 4 (Tenn. Crim. App., Knoxville, July 25, 1997),

perm. app. denied (Tenn. 1998); State v. Howard Luroy Williamson, Jr., No. 02C01-
5

9507-CC-00201, slip op. at 4 (Tenn. Crim. App., Jackson, Sept. 30, 1996); State v.

Stevie Q. Taylor, No. 02C01-9504-CC-00108, slip op. at 5 (Tenn. Crim. App.,

Jackson, May 1, 1996). 

As discussed in section I above, the trial court was within its discretion

in revoking the defendant's probationary sentence. Having so found, the court had

the statutory authority to order the defendant to serve his entire two-year sentence

in the Department of Correction. Instead of taking that course of action, the trial

court extended a measure of mercy to the defendant by ordering him to serve his

original sentence in split confinement. The court imposed conditions to help the

defendant meet the financial obligations of his original sentence and receive

assistance for his substance abuse problem. We see no abuse of discretion in that

decision.

The judgment of the trial court is affirmed.

_______________________________

CURWOOD WITT, JUDGE
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CONCUR:

_____________________________

JOSEPH M. TIPTON, JUDGE

_____________________________

JOE G. RILEY, JUDGE