                                                                                          12/20/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 14, 2019

             STATE OF TENNESSEE v. ROBBIE JOE KILGORE

                  Appeal from the Circuit Court for Warren County
                   No. 18-CR-1764 Larry B. Stanley, Jr., Judge
                      ___________________________________

                           No. M2019-00281-CCA-R3-CD
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The defendant, Robbie Joe Kilgore, appeals the order of the trial court revoking his
probation and ordering him to serve his original three-year sentence in confinement.
Upon review of the record, we conclude the trial court did not abuse its discretion in
finding the defendant violated the terms of his probation, and the imposed sentence is
proper. Accordingly, the judgment of the trial court is affirmed.

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

J. ROSS DYER, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ALAN E. GLENN, JJ., joined.

John P. M. Partin, District Public Defender; Ricky L. Stacy, Assistant Public Defender,
for the appellant, Robbie Joe Kilgore.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and Thomas
Miner, Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                              Facts and Procedural History

        On June 27, 2018, the defendant, Robbie Joe Kilgore, pleaded guilty to theft of
property over $2,500 and received a three-year sentence with the Tennessee Department
of Correction, suspended to supervised probation. The terms of probation required, in
part, the defendant to report any changes in residence to his probation officer, to not use
or possess any illegal drugs, and to follow all instructions given by his probation officer.
       On July 16, 2018, the defendant tested positive for amphetamine,
methamphetamine, and marijuana. Additionally, the defendant failed to inform his
probation officer before changing his residence, failed to report for his risk assessment as
instructed by his probation officer, and failed to report to his forensic social worker as
instructed by his probation officer. A probation violation warrant was issued on August
8, 2018, and a revocation hearing was held on January 9, 2019.

        At the revocation hearing, no evidence was presented, and the defendant stipulated
to the fact that he violated the terms of his probation. The defendant requested a sentence
of ninety days confinement followed by supervised probation. The State did not make a
sentencing recommendation but stated, although this was the defendant’s first violation in
this case, his criminal history revealed he had five previous probation violations. At the
conclusion of the hearing, the trial court revoked the defendant’s probation and ordered
him to serve the original three-year sentence in the Tennessee Department of Correction.
This timely appeal followed.

                                         Analysis

       On appeal, the defendant argues the trial court erred in ordering him to serve the
original sentence in confinement. Because this was his first violation in this case, the
defendant contends the trial court abused its discretion in “fully revoking his probation.”
The State contends the trial court properly exercised its discretion in revoking the
defendant’s probation and ordering him to serve the original sentence in confinement.
After our review, we affirm the judgment of the trial court.

        A trial court has statutory authority to revoke a suspended sentence upon finding
that the defendant violated the conditions of the sentence by a preponderance of the
evidence. Tenn. Code Ann. § 40-35-310, -311; see State v. Clyde Turner, No. M2012-
02405-CCA-R3-CD, 2013 WL 5436718, at *2 (Tenn. Crim. App. Sept. 27, 2013). “The
trial judge has a duty at probation revocation hearings to adduce sufficient evidence to
allow him to make an intelligent decision.” State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App.
1991)). If a violation is found by the trial court during the probationary period, the time
within which it must act is tolled, and the court can order the defendant to serve the
original sentence in full. Tenn. Code Ann. § 40-35-310; see State v. Lewis, 917 S.W.2d
251, 256 (Tenn. Crim. App. 1995). To overturn the trial court’s revocation, the defendant
must show the trial court abused its discretion. State v. Shaffer, 45 S.W.3d 553, 554
(Tenn. 2001). “In order to find such an abuse, there must be no substantial evidence to
support the conclusion of the trial court that a violation of the conditions of probation has
occurred.” Id. (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)).
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        Here, the defendant stipulated to his probation violations. This Court has
repeatedly cautioned that “an accused, already on probation, is not entitled to a second
grant of probation or another form of alternative sentencing.” State v. Jeffrey A. Warfield,
No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999);
see State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at
*2 (Tenn. Crim. App. Feb. 11, 2002). Although this was the defendant’s first probation
violation in this case, he has a history of violating probation, having committed five
violations since 2003. As the State argued at the probation violation hearing, the
defendant “[j]ust doesn’t do well on probation.” We agree. Accordingly, we find the
trial court did not err by ordering the defendant to serve the balance of his sentence in
confinement.

        Additionally, the record contains substantial evidence to support the trial court’s
decision to revoke probation and order the defendant to serve the original sentence in
confinement. The terms of the defendant’s probation specifically required the defendant
to notify his probation officer before changing his residence, to refrain from using illegal
drugs, and to follow the instructions of his probation officer. According to the violation
report, the defendant failed to inform his probation officer before changing his residence,
failed to report to his forensic social worker, failed to report for his risk assessment, and
tested positive for amphetamine, methamphetamine, and marijuana. The record also
contains the toxicology report showing a positive drug screen. The defendant agreed to
these facts at the revocation hearing, and the record contains sufficient evidence to
sustain the trial court’s revocation order. Shaffer, 45 S.W.3d at 554. The trial court acted
within its discretion in ordering the defendant to serve the original sentence of five years
in the Tennessee Department of Correction. Tenn. Code Ann. § 40-35-310; Clyde
Turner, 2013 WL 5436718, at *2; Lewis, 917 S.W.2d at 256. The defendant is not
entitled to relief.

                                        Conclusion

        Based upon the foregoing authorities and reasoning, we affirm the judgment of the
trial court revoking the defendant’s probation and ordering him to serve the original
sentence in confinement.




                                              ____________________________________
                                             J. ROSS DYER, JUDGE


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