State of Tennessee v. Bruce Hollars ( 2003 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 22, 2003
STATE OF TENNESSEE v. BRUCE HOLLARS
Direct Appeal from the Criminal Court for Overton County
No. 5068 Lillie Ann Sells, Judge
No. M2002-01801-CCA-R3-CD - Filed May 21, 2003
The Overton County Criminal Court revoked the probation of the defendant, Bruce Hollars,1 and
ordered his original sentences of two consecutive terms of eleven months and twenty-nine days be
served in confinement. On appeal, the defendant contends that the trial court erred by requiring him
to serve the entire sentence. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOE G. RILEY, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR., and
NORMA MCGEE OGLE , JJ., joined.
Michael Savage, Livingston, Tennessee, for the appellant, Bruce Hollars.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William Edward Gibson, District Attorney General; and Owen G. Burnett, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
On December 17, 2001, the defendant pled guilty pursuant to a plea agreement to simple
possession of marijuana and possession of drug paraphernalia, both Class A misdemeanors, and
received consecutive sentences of eleven months and twenty-nine days at 75% for each offense to
be served on probation.
On March 4, 2002, the defendant was arrested and charged with driving under the influence
and violation of the implied consent law, thereby triggering a revocation warrant. At the probation
revocation hearing, Officer Ray Smith testified he received complaints from employees of a
business, who reported smelling alcohol on the defendant when he entered the business. The
1
The defendant’s last name is also spelled “H ollers” in some p leadings.
employees also informed the officer that the defendant experienced difficulties in driving his vehicle
out of the parking lot.
Officer Smith testified that while en route to the business, he met the defendant driving his
vehicle. The officer followed the defendant for approximately one-eighth of a mile, during which
time he observed the defendant drive across the yellow line “multiple” times and swerve into traffic
once. The officer then stopped the defendant.
Officer Smith testified that upon approaching the defendant’s vehicle, he observed a “pile”
of beer cans in the back seat of the vehicle. The officer smelled a strong odor of alcohol emitting
from the vehicle and asked the defendant to exit the vehicle. Officer Smith stated that when the
defendant exited the vehicle, he smelled alcohol on the defendant’s breath. When the officer
requested the defendant take a series of field sobriety tests, the defendant refused and told the officer
that he “could do something else with the test[s].” The defendant also refused to submit to a blood-
alcohol test.
Officer Smith testified the defendant was “erratic,” and his speech was slurred. The
defendant informed the officer that he drank three or four beers at his residence prior to driving.
Based on his observations, Officer Smith opined that the defendant was impaired and unable to
safely operate a motor vehicle.
The defendant testified that prior to driving, he had consumed one and one-half beers and had
taken two diuretics, a water pill, a pain pill, and two anti-depressants. He stated he was unaware of
the effect the combination of medication and alcohol would have on his ability to drive. He further
stated he did not believe he was intoxicated. The defendant also acknowledged that the rules of his
probation prohibited him from drinking alcohol.
The trial court specifically accredited Officer Smith’s testimony and found by a
preponderance of the evidence that the defendant violated his probation by driving under the
influence. The trial court revoked the defendant’s probation and ordered his original sentences to
be served in confinement. This appeal followed.
ANALYSIS
The defendant concedes that the evidence was sufficient to support the trial court’s finding
that he violated his probation. However, the defendant contends the trial court should have imposed
less restrictive punishment. We disagree.
A trial court may revoke probation and order the imposition of the original sentence upon
a finding by a preponderance of the evidence that the person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310, -311. The decision to revoke probation rests within the sound
discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
-2-
Revocation of probation is subject to an abuse of discretion standard of review, rather than a de novo
standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
Upon finding that a defendant has violated the terms of probation, a trial court is expressly
authorized to order the defendant to serve the entire balance of the original sentence in confinement.
See Tenn. Code Ann. §§ 40-35-310, -311; State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999).
Furthermore, a defendant who is already on probation is not necessarily entitled to an additional
grant of probation or some other form of alternative sentencing. State v. Jeffrey A. Warfield, No.
01C01-9711-CC-00504, 1999 Tenn. Crim. App. LEXIS 115, at *4 (Tenn. Crim. App. Feb. 10, 1999,
at Nashville), perm. to app. denied (Tenn. 1999).
Upon revoking the defendant’s probation, the trial court had the authority to order him to
serve his original sentences. We conclude the trial court did not abuse its discretion in ordering the
defendant to serve his original sentences in confinement. Therefore, we affirm the judgment of the
trial court.
JOE G. RILEY, JUDGE
-3-