State v. McLemore ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
July 28, 1998
MAY 1998 SESSION
Cecil Crowson, Jr.
Appellate C ourt Clerk
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
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
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The defendant would be allowed to participate in the work release
program.
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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.
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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 imposed can 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-
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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
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