# FILED
July 28, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9709-CC- 0 040 6 ) vs. ) Blount County ) TROY MCLEMORE, ) Hon. D. Kelly Thomas, Jr., Judge ) Appellant. ) (Probation Revocation) )

FOR THE APPE LLANT: FOR THE APPELLEE: RAYMOND MACK GA RNER JOHN KNOX WALKUP District Public Defender Attorney General & Repor ter STACEY NOR DQUIST CLI NTO N J. MOR GAN Asst. District Publi c Defender Asst. Attorney General 419 High St. 425 Fifth Ave. N., 2d Floor Maryville, TN 37804 Nashville, TN 37243 GERAL D L. G ULLE Y, JR . (ap peal only) MICHAEL L. FLYNN Attorney at Law District Attorney General P.O. Box 1708 Knoxville, TN 37901- 1708 EDWARD P. BAILEY, JR. Asst. District Attor

ney General 363 Court St. Maryville, TN 378

04

OPINION FILED:________________ AFFIRMED CURWOOD WITT, JUDGE1 The defendant would be allowed to participate in the work release

program. 2 OPINION The defendant, Troy McLemore, ap peals the Blount County Circuit Court's revocation of his probationary sentence for the crimes of burgla ry and theft of property. He was

convicted of

those crimes in 1994 follow ing his guilty pleas and received a n effective two year sentence of confinement an d probation. His sentence was extended by cons ent for an additional year w

hen he failed tosatisfy the financial obligations imposed with the original sentence. During this extended term, a violati on summons issued charging the defendant with using dr ugs and fai ling to pay his court costs, restitution and probation fees. The trial court foun d that the defendant ha

d violated

the terms

of his probationary sentenc e and ordered him to serve five months and six days in the county jail 1 followed by six months of intensive probation with drug treatment. In this appeal, he contends (1) there is no substantial evidence to support the tr ial court's revocation of pr obation, and (2) the trial court erred in not allow ing him tose rve his sentence in int ensive probation. Having reviewed the recor d and the parties' briefs, w e affirm the judg ment of the trial court.

I

The fi rst is sue is whether the tri al 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 (Te nn. 1991). In order for an abuse of discr eti on 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 violati on 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 re quired only to find that the3

violation of probation occurred by a p reponderance of the ev id ence. Tenn. Code Ann. § 40-35-311(d) (1997). Upon a finding of a violatio n, the trial court is v ested with the stat utory aut hority to "revoke pr obation and suspension of sentence and
cause the defendant to commence t he executi on of the judgment as originally entered." Tenn. Code Ann. § 40-3 5-311(d) (1997). Furthermore, w hen probation is revoked, "in such cases the original j udgment so rendered by the trial judge shall be in full f orce and effect from the date of the revo c ation of such suspension." Tenn. Code Ann. § 40-35-310 (1 99 7). The trial judge retains the discretionary authority to order thedefendant to serve the orig inal sentence. See State v. Duke , 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

In this case, the defendant adm itted that he had used illegal drugs. Such use was in violation of the terms of his probationary sentence. This alone is substantial evide nce of record to support the trial court's revocatio n order. See State v. Michael Emler , No. 01C01-9512-CC-00424, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 27, 1996) (wher e t he defendant admits violation of the ter ms of probation, revocation by the tr ial court is not

arbitrary or capricious); see also State
v. Mitzi Ann Bo yd , No. 03C01- 9508-CC-00246, slip op. at 3 (Tenn. Crim. App., Knoxville, Nov. 1, 1996). A fter the defendant failed a drug screen , he claimed to have contacte d two rehabilitation programs but determined he could afford neith er. His probation officer

told him about two other prog rams which he would be able to afford, but he did not bother to contact them. He admitted using marijuana o nlya few days before the revoc ation hearing.

In short, the defendant was gi ven a favorab le form of alternat ive sentencing and failed to abide by the rul es imposed upon him. We cannot say the trial court abused its discretion in revokingprobation for the defendant's illi cit drug
use.4 II The defendant's second issue is w hether the trial court er red i n ordering him to serve a portion of his sentence in the c ounty 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 reco rd does not support conclusions that his incarceration is necessary to protect the public from him and that there is a need for deterr ence. See Tenn. Code Ann. § 40-35-103(1) (1997).

The statute provides thatupon the trial court's di scretionary decisi on to revoke a defendant's probationar y sentence, "the origi nal judgment so rendered bythe trial judge shall

be in full force and effect . . . ." Tenn. Code Ann. § 40- 35- 310 (1997). The Sentencing Commission Comments imply that the trial c

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

action to be appropriate. See Tenn. Code An n. § 40-35-310, Sentencing Comm'n Comments (1997) ("Upon revocati on, the original sentence imposed can be placed into effect.") (emphasis added); State v. Marty Mi ller , No. 03C01-9602-CC-00056, slip op. at 8 (Tenn. Crim. App., Knox ville, 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, tri al court "shall have the right . .

. to revoke the probation and suspension of sentence and cause the defendant to
commence the executio n 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 princi ples of sentencingafter finding that the defendant has violated the terms of probation. State v. Yvonne Burnet te , No. 03C01-9608-CR-00314, s lip op. at 4 ( Tenn. Crim. App., Knoxville, July25, 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. 0 2C01 -9504-CC-00108, slip op. at 5 (Tenn. Crim. App., Jackson, May 1, 1996).

As discussed in section I abov e, the trial court was w

ithin its discretion in revoking the defendant's pr obationary sentence. Havingso found, the court had the statutory authority to order the defendant to serve his entire two-year sentence in the Department of Co r rection. 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 c ourt imposed co nditions to help the defendant meet the financia l obli gations o f his origi nal sente nce and re ceive assistance for his substance abuse problem. We see no abuse of discretion in that decision.
The judgment of the trial court i s affirmed.

_______________________________ CURWOOD WITT, JUDGE6

CONCUR:

_____________________________ JOSEPH M. TIPTON, JUDGE

_____________________________ JOE G. RILEY, JUDGE