        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 29, 2011

                 STATE OF TENNESSEE v. JARVIS NICHOLS

               Direct Appeal from the Circuit Court for Blount County
                       No. C-15120    David R. Duggan, Judge




                  No. E2010-01841-CCA-R3-CD - Filed May 23, 2011


The defendant, Jarvis Nichols, appeals the judgment of the Blount County Circuit Court,
revoking his probation and imposing service of the remainder of his sentence in confinement.
In this appeal, the defendant argues that the trial court abused its discretion in ordering
service of the balance of the sentence in confinement when less severe sanctions were
available. Upon a thorough review of the record and the parties’ briefs, we affirm the
decision of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES
C URWOOD W ITT, J R., JJ., joined.

J. Liddell Kirk (on appeal), Knoxville, Tennessee, and Mack Garner, District Public
Defender (at trial) Maryville, Tennessee, for the appellant, Jarvis Nichols.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Andrew Watts, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                             Facts
        On April 14, 2008, the defendant pled guilty to one count of evading arrest. In
exchange for his plea, the trial court sentenced the defendant to two years, with sixty days
in confinement and the balance to be served on supervised probation. On August 6, 2008,
the probation officer filed a probation violation, alleging that the defendant used marijuana,
failed to follow the drug treatment plan, and failed to make the required monthly payments
on court costs and fines. The trial court issued a probation revocation warrant on August
8, 2008. On January 27, 2009, the court held a revocation hearing, and the defendant
stipulated to the facts alleged in the violation report. Upon finding that the defendant
violated his probation, the court revoked the probation and ordered the defendant to serve
120 days in the Blount County Jail before returning to supervised probation.

       On September 3, 2009, the probation officer filed a second violation, alleging that the
defendant was charged with aggravated assault, failed to report his arrest to his probation
officer, repeatedly failed to report to his probation officer, failed to provide proof of
employment, failed multiple drug screens, and failed to make the monthly payments on court
costs and fines. The trial court held a revocation hearing on November 2, 2009, and the
defendant again stipulated to the facts alleged in the violation report. The court revoked the
defendant’s probation and ordered him to serve his agreed-upon sentence. On January 8,
2010, the defendant was released on probation.

       On June 16, 2010, the trial court issued the most recent probation violation warrant,
following allegations that the defendant failed to report to his probation officer, tested
positive for marijuana use on February 24, 2010, failed to pay court costs, and engaged in
assaultive, abusive, threatening, or intimidating behavior.

       On August 13, 2010, the trial court held a probation violation hearing. The
defendant’s most recent probation officer testified that he began supervising the defendant
in April, 2010. The defendant failed to report once a month as required. According to the
probation officer’s notes, the defendant last reported in February, 2010, until his arrest on
July 20, 2010. On February 24, 2010, the defendant tested positive for marijuana. The
probation officer sent the defendant a demand letter and attempted to contact him by
telephone several times. As of July 21, 2010, the defendant had an outstanding balance of
$975 in fees and fines. The probation officer recommended that the defendant’s probation
be revoked.

       The defendant testified that he was thirty-one years old, single, with a twelve-year-old
child who lived with the child’s mother. After being released from prison on January 8,
2010, the defendant lived with his mother in Madisonville. He worked as a roofer, but
business was slow in the winter months. The defendant testified that he understood he was
required to report to his probation officer once a month, and he reported in January and
February. The defendant admitted that he testified positive for marijuana in February.
However, the defendant told his probation officer that he smoked marijuana while he was in
prison, and it was still in his system. His probation officer told him to come back for another
drug screen the following month. The defendant admitted that he failed to report in March,
but he stated that he was scared to go back to his probation officer because his girlfriend’s

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mother “didn’t like [him] so she was calling down there and telling a bunch of lies on [him].”
The defendant testified that he was afraid that his probation officer would not be fair, so he
stopped reporting. According to the defendant, he had not used marijuana since his most
recent release from prison. He also stated that he was still employed as a roofer. The
defendant testified that he could obey the rules of probation if given one more chance. He
stated that he was “tired of going in and out of jail” and would “like to make something of
[himself] and do the right thing for a change.”

        After the hearing, the court found that the defendant had violated his probation by
failing to report to his probation officer as directed and failing to pay supervision fees and
court costs. However, the court declined to find that the defendant used marijuana, given the
defendant’s claim that the positive drug test was a result of his marijuana use while he was
incarcerated. Pursuant to an order dated August 13, 2010, the court revoked the defendant’s
probation and ordered him to serve the sentence as previously ordered. The defendant filed
a timely notice of appeal on August 30, 2010.

                                           Analysis

      On appeal, the defendant challenges the revocation of his probation. Although the
defendant concedes that he is guilty of violating his probation, he argues that the trial court
abused its discretion in ordering that the defendant serve the balance of his sentence in
confinement, when less severe sanctions were available.

       The decision to revoke probation lies within the sound discretion of the trial court.
State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). The trial court may revoke
probation upon a finding by a preponderance of the evidence that the defendant violated the
conditions of his or her probation. See Tenn. Code Ann. §§ 40-35-310,-311(e)(2006); State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If the trial court finds that the defendant has
violated probation, the court may revoke probation and either order incarceration, order the
probationary period to begin anew, or extend the remaining probationary period for up to two
additional years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999); see also Tenn. Code Ann.
§§ 40-35-308, -310, -311 (2006). When probation is revoked, then the original judgment
“shall be in full force and effect from the date of the revocation of such suspension . . .”
Tenn. Code Ann. § 40-35-310.

        The decision of the trial court to revoke probation will be upheld on appeal unless
there has been an abuse of discretion. Harkins, 811 S.W.2d at 82. If the trial court has
exercised “conscientious judgment in making the decision rather than acting arbitrarily,” then
there is no abuse of discretion. Leach, 914 S.W.2d at 107. Discretion is abused only if the
record contains no substantial evidence to support the trial court's conclusion that a violation

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has occurred. Harkins, 811 S.W.2d at 82; State v. Gregory, 946 S.W.2d 829, 832 (Tenn.
Crim. App. 1997).

        There is ample evidence that the defendant repeatedly violated the terms of his
probation. According to the probation violation reports, the defendant failed to report to his
probation officer, engaged in assaultive behavior, failed multiple drug screens, and failed to
make necessary payments on court costs and fines. In fact, the defendant testified under oath
that he admitted to all allegations contained in the probation violation reports. Therefore, the
record supports the trial court’s findings. Accordingly, we conclude that the trial court did
not abuse its discretion in revoking the defendant’s probation and ordering him to serve the
balance of his sentence in confinement.

                                         Conclusion

       Based upon the record as a whole, we affirm the judgment of the trial court.


                                                    ___________________________________
                                                    J.C. McLIN, JUDGE




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