State v. John Stupp ( 2010 )

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
July 8, 1999
AT KNOXVILLE
Cecil Crowson, Jr.
Appellate C ourt
MAY 1998 SESSION Clerk
STATE OF TENNESSEE, )
)
Appellee, ) C.C.A. No. 03C01-9810-CC-00354
)
vs. ) Blount County
)
JOHN L. STUPP, ) Hon. D. Kelly Thomas, Jr., Judge
)
Appellant. ) (Probation Revocation)
FOR THE APPELLANT: FOR THE APPELLEE:
GREGORY D. SMITH (on appeal) JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
One Public Sq., Ste. 321
Clarksville, TN 37040 MARVIN S. BLAIR, JR.
Asst. Attorney General
NATALIE HURLEY (at hearing and 425 Fifth Ave. North
of counsel on appeal) 2d Floor, Cordell Hull Bldg.
Assistant Dist. Public Defender Nashville, TN 37243-0493
419 High St.
Maryville, TN 37804
MICHAEL L. FLYNN
District Attorney General
TAMMY HARRINGTON
Asst. District Attorney General
363 Court St.
Maryville, TN 37804
OPINION FILED:________________
AFFIRMED - RULE 20
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, John L. Stupp, appeals the revocation of his
probationary sentence. He was convicted upon his guilty pleas of Class D felony
theft of property, Class A misdemeanor theft of services, Class E felony possession
of a Schedule VI drug for resale, Class D felony burglary, and Class A misdemeanor
possession of drug paraphernalia. He agreed to a five-year effective sentence, and
the trial court imposed probation. Upon release from the Blount County Jail, the
defendant was to live at the Salvation Army in Knox County until other
arrangements could be made by his probation officer. The day after his release, the
defendant left the Salvation Army facility. Moreover, he failed to make contact with
his probation officer as he had been instructed to do. The defendant admitted as
much at the sentencing hearing, although he claimed he had unsuccessfully
attempted to contact his probation officer by telephone. On review, we find no error
of law requiring reversal and affirm the trial court's revocation pursuant to Rule 20
of the rules of this court.
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 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, " 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 violation of the terms of
probation. 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). We cannot say
the trial court abused its discretion in revoking probation for the defendant's
failure, almost immediately upon his release from jail, to abide by the terms of his
probationary sentence. Moreover, the facts of this case demonstrate no abuse
of discretion by the trial court in ordering the defendant to serve the original
sentence.
Accordingly, we affirm the judgment of the trial court pursuant to
Rule 20, Rules of the Court of Criminal Appeals.
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_______________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_____________________________
JOHN EVERETT WILLIAMS, JUDGE
_____________________________
ALAN E. GLENN, JUDGE
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