State v. John Stupp

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9810-CC-00354
• Status: Published

Opinion

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.

3 _______________________________ JAMES CURWOOD WITT, JR., JUDGE

CONCUR:

_____________________________ JOHN EVERETT WILLIAMS, JUDGE

_____________________________ ALAN E. GLENN, JUDGE