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

Briefs A ugust 9, 2005
LARRY W. TIMB ERLAKE v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County No. 2002-A-566 Cheryl Blackburn, Judge

No. M2004-02734-CCA-R3-CD - F iled September 12, 2005

The defe ndan t, L arry W. Timberlake, appeals his probation revocation and imposition of his original seven-ye ar

sen tence. Af

ter a thorough review of the re cord and applicable law, we affir m the judgment of the trial court.

Tenn. R. App. P. 3; Judg ment of the Crim inal Court is Affirme d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID G. H AYES and J ERRY L. S MITH , JJ., joined. Theodora A. Pappas, for the Appellant, L arry W. Timberlake

. Paul G. Summers, Attorney Gene ral & Reporter; Benjamin A. Ba ll, Assistant Attor ney

Genera l; Victor S. Johnson, III , District Attorney Gene ral; and Bret Gunn, Assistant Attorney General, for the Appellee, State of Tennessee.

OPINION

On March 26, 2002, the defendant pleaded guilty to robbery a

nd attempted robbery pursuant to a plea a gre ement with the state in which he agreed to ser ve and effective seven-y

ear sentence. The defendant agreed to and serve one y ear of his sentence, day

for day, in loca

l confine ment, and thereafter he was place d on supervised probation. After be ing released on probation, the defe

ndant re ported to his proba

tio n officer

approximately three times. When the defendant failed to report a gain as scheduled, the probation officer filed a pr obation violation report alleging that the defendant had failed to report, that his where abouts and address were unknown, and that he wa s in arre ars on his probatio n fee pa

yme nts.
The defendant was located and later ar rested a fter he gave a falsename to the police. The trial court conducted an evidentiary hearing in which the defendant and a representative f rom the probation office testified. The defendant testified that he ha d failed to report because he began-2-

using ille gal dru gs whil e on pr obati on and theref ore was afraid of fai ling a drug test and as a result having his probation revoked. This same fear motivated the defendant to provide the police with a falsename whe

n questioned. The d

efenda nt testifie d that he h ad not use d drugs in the fou

r to five months prior to the probation revocation hearing and that he was concerned he may have contracted the AID S virus fr

om a fema

le frien d who had b een diag

nosed with

AIDS. The defenda

ntstated that he had employment and a place to live awaiting him if the court should “give him a second chance” and allow him to serve some type of non-incarcerative sentence

. On cross-e

xamination, th e st ate elicited from the defendant that he had four prior felony convicti ons. More over, the defenda nt had bee

n previou sly

pla c ed in the c ommunity corrections progra

m and had h

is placement revoked. Thecourt revoked the defendant’s probation and imposed his original seven-y ear incarcerative sentenc e.
The defendant concedes that his admission supports the court’s conclusion th at he violated the terms of his probation. However, the defendant ar gues that the court ab

used its discretionin rev okin g t h e his prob ation bec ause the record establish ed that he

made ef forts to comply with certain terms of

his probation by providing upda ted addresses to his probation officer, making a payment of pr

obation fees, reporting several times to his probation officer, and maintaining employ ment. Moreover, the defendant argues that the cour t should have considered that his failure to report was his first p robation violation i

n this case and that he was battling a drug addiction during the course of his probation. The state counters that the defendant’s admission at his hearing a nd concession

on appeal that he violated his probation are sufficient to support the court’ s probation revocation.

Th e standard of review upon appeal of an or der revoking probation is the abu se o f discretionstandard. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). In order for a n abuse of discretionto occur, the reviewing court must find that

the record contains no substantial evidence to support

the conc lusion of th e trial ju dge tha t a violation of the terms of probation has occurred. Id. ; State v. D elp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The trial court is r equired only to find that

th e violation of probation occurred by a preponderance of the evidenc e. Tenn. Code Ann. § 40-35-311(e) (2003). Upon finding a violation, the trial cour t is vested w ith the stat utory authority to “revoke the probatio n and susp ension of sentenc e and ca

use the defendant to commence the execution of the judgment as originally entered.” Id. Furthermore, when probation is revoked, “the original judgment so rendere d by the trial

judge shall be in f

ull force and eff ect fro m the date of the revocation of such suspension.” Id. § 40-35-310. T he trial j udge 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).

Inthe pres ent case , substant ial evide nce supp orts the trial court’s conclusion that the defendant violated the terms of his pro bation. The defen

dant admi tted that h e failed

to report to

his probationoffi cer, fa

ile d to ad vise h is pro batio n offi cer of h is new addres s, and used i llegal drugs while on superv

ised prob ation, al l of which were in contravention of his probation agreement. The de fendant’s assertions that he initially reporte d to his probation officer several times and filed sev era l-3-

change of addre ss forms do not excuse

his ultimate failure to report or inform the probation office of his whereabouts. We conclude that the record supports the trial cour t’s determination that the defendant violated the terms of his probat ion. Havi ng determined that the defendant violated probation, the trial court retained the discretionary authority to reinstate the de fendant’s original sentence. See id. Moreove r, the de fendant

was not e

ntitled to a

credit f or any time sp ent on prob ation unless the entire term was successfully completed. State v. Taylor , 992 S.W.3d 941 (Tenn. 1999). Accordingly , in the instant case, the trial court acted within its authority by

requiring the defendant to serve his originally -imposed seven-year sentence. Finding no error in the re cord, we

affirm t he judg ment of the

trial cou rt.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE