State v. Michael Love

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

SEPTEMBE R SESSION, 1998 FILED October 30, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9805-CC-00134 Cecil Crowson, Jr. ) Appellate C ourt Clerk Appellee, ) ) ) MADISON COUNTY VS. ) ) HON. WHIT LAFON MICHAEL D. LOVE, ) JUDGE ) Appe llant. ) (Probation Revocation)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

C. MICHAEL ROBBINS JOHN KNOX WALKUP 46 North Third Street Attorney General and Reporter Suite 719 Memphis, TN 38103 CLINTON J. MORGAN Assistant Attorney General 425 5th Avenu e North Nashville, TN 37243

JERRY W OODALL District Attorney General

JAMES W. THOMPSON Assistant District Attorney General Lowell Thomas State Office Bldg. Jackson, TN 38301

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE

OPINION

The Defendant appeals as of right from the judg ment of the trial cou rt which found him to be in violation of the terms of his probation. He argues that the trial court erred in ordering the balance of his sentence to be served in confinem ent. W e affirm the judgm ent of the tria l court.

In 1994, the Madison County, Tennessee grand jury indicted the Defendant on charges of aggra vated robbe ry, conspiracy to com mit aggravate d robbery, possession of a dead ly weapo n with inten t to emp loy it in the commission of aggravated robbery, possession of cocaine with intent to sell or deliver, evading arrest, and contributing to the delinquen cy of a minor. Su bsequen tly, pursuant to a plea agreement, the Defendant pleaded guilty to aggra vated rob bery, a Class B felony, and misdemeanor possession of cocaine. The plea agreement called for concurrent sentences of eight years for agg ravated robbe ry and eleven months and twenty-nine days for the misdemeanor drug charge. One year of the sentence was ordered to be served in the coun ty workho use with th e balan ce to be served in community corrections. By order entered on July 20, 1995, the balance of the Defendant’s sentence was ordered to be served on probation.

On September 26, 1997, a probation violation warrant was issued, alleging that the Defe ndant h ad violated probation by being arrested for “aggravated sexual assau lt of a child” in Texas. The record reflects that the Defendant subs eque ntly pleaded guilty in Texas to the felony of “indecency with a child by

-2-exposu re.” He received a three-year sentence in Texas which was ordered to be served o n “com munity s upervisio n.”

On March 10, 199 8, after conducting an evidentiary hearing on the probatio n violation warra nt, the tria l court fo und th at the D efend ant wa s in violation of the te rms o f his probation. Th e court ordered the probation revoked and the balance of the Defendant’s sentence served in the Department of Correction. It is from the order of the trial court directing that the balance of the Defendant’s sentence be served in confinement that the Defendant appeals.

When a probation revocation is challenged, the appellate courts have a limited scope of review. For an appellate court to be warranted in finding a trial judge erred in determining that a violation has o ccurre d, the re cord m ust co ntain no substan tial evidenc e to supp ort the con clusion o f the trial judge. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If the violation is so supported by the record, the judgment of the trial court revoking probation will not be disturbed on appeal unless it appears that the trial court acted arbitrarily or otherwise abused its discretion . State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981).

When a trial judge grants a suspended sentence, that judge demonstrates a certain amount of confid ence that the Defe ndan t will lead a lawful life. When the Defendant’s subsequent actions violate that confidence, the trial judge again exercises discretion in determining whether the suspended sentence should be revoked. Daven port v. State , 381 S.W.2d 276, 27 9 (Ten n. 1964 ); Thom pson v. State, 279 S.W.2d 261, 262 (Tenn. 1955). The Defendant’s subsequent actions

-3-may indicate that the initial decision to suspend the sentence was a mista ke. All probationers are deemed to be on notice that they may not engage in unlawful activity or othe rwise c ondu ct them selves incon sisten tly with go od citize nship if they are granted p robatio n instead of incarce ration. Robe rts v. State, 546 S.W .2d 264, 265 (Tenn. Crim . App. 1976 ).

The Defe ndan t conc edes that his felony conviction in Texas constitutes a violation of the terms of his Tennessee probation. He argues, however, that the trial judge abused his discretion by ordering the balance of the Defe ndant’s e ightyear sentence to be served in the Department of Correction. He ar gues that this Cou rt shou ld remand the case and direct the trial judge to place the Defendant back o n proba tion.

A trial court is ves ted with the statutory au thority to “revoke the 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). Furthermore, 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.” Tenn. Code Ann. § 40-35-310. The trial judge retains the discretionary authority to order the defendant to serve the original senten ce. See State v. Duke, 902 S.W .2d 424, 427 (Tenn. Crim . App. 1995 ).

The Defendant, who was already on probation for a felony, committed another felony. Under these circumstances, the Defendant’s argument that he is entitled to a second grant of probation is not particularly persuasive. The testimony given by the Defendant at his revocation hearing demonstrates little,

-4-if any, assurance that he wo uld be unlike ly to violat e his probation again were he allowed to contin ue to s erve h is sentence on probation. This was obviously also the conclusion of the trial judge. Based on our review of this record, we cannot conclude that the trial judge erred or abused his discretion in ordering the balance of the De fendant’s sentence to be served in the Department of Correc tion.

The judgment of the trial court is affirmed.

____________________________________ DAVID H. WELLES, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ JOE G. RILEY, JUDGE

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