         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs November 18, 2003

                STATE OF TENNESSEE v. DAVID CURTIS LYNN

                      Appeal from the Circuit Court for Dickson County
                             No. 4775 Robert E. Burch, Judge



                    No. M2002-02706-CCA-R3-CD - Filed March 30, 2004


The appellant, David Curtis Lynn, was convicted of second offense driving under the influence. As
a result, he was sentenced to 11 months and 29 days. He was ordered to serve 90 days in jail and the
remainder of his sentence on probation. The appellant apparently violated probation sometime in
2001 and, as a result of that violation, the trial court extended his probation by six months. After
a hearing on what appears to be a second probation violation, the trial court entered an order
revoking the appellant’s probation and ordering him to serve his sentence in confinement. On
appeal, the appellant argues that the trial court abused its discretion in revoking his probation and
that his sentence had expired at the time the trial court revoked his probation. We affirm the trial
court’s revocation of the appellant’s probation and decline to address the issue regarding the
expiration of the appellant’s sentence due to an inadequate and incomplete record on appeal.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , and ROBERT W.
WEDEMEYER, JJ., joined.

Jerred A. Creasy, Charlotte, Tennessee, for the appellant, David Curtis Lynn.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General; Dan
Alsobrooks, District Attorney General; and Kim Menke, Assistant District Attorney General, for the
appellee, State of Tennessee.
                                                      OPINION

                                                Factual Background


        At the outset, we are compelled to note the incomplete nature of the record before this Court
on appeal. From the record, we have ascertained that the appellant was convicted of second offense
driving under the influence. For this offense, the appellant was sentenced on September 21, 2000,
to 11 months and 29 days. According to the terms of his sentence, the appellant was ordered to serve
90 days in jail with the remainder of his sentence to be served on probation. The appellant appealed
that conviction to this Court, but the appeal was subsequently dismissed.

        What follows is somewhat uncertain. From the technical record, it appears that a violation
of probation occurred sometime prior to November 28, 2001, because court minutes from that date
indicate that a hearing was held on a violation of probation warrant based on a positive drug screen.
The minutes reflect that the appellant acknowledged the violation, agreed to the violator program
terms, agreed to attend responsible choices class, and agreed to continue to participate in alcohol and
drug rehabilitation. As a result of the violation, the trial court ordered that the appellant’s probation
be extended six months. The next document in the technical record is an order from October of
2002, wherein the trial court found the appellant in violation of probation and ordered the appellant
to serve his sentence.

         Also included in the record is a transcript of a hearing from September 25, 2002, at which
the trial court considered a probation violation warrant.1 The arguments of counsel at the hearing
reference several probation violation warrants, but no testimony appears in the record to indicate the
date of the warrant at issue at the hearing. Further, there were no exhibits introduced at the hearing.

        The testimony at the hearing on September 25, 2002, does little to shed light on the sequence
of events or the precise reason for the issuance of a probation violation warrant. At the outset of the
hearing, counsel for the appellant asked that the trial court dismiss the probation violation warrant
due to the fact that the appellant’s sentence had expired. The trial court denied the motion.

        The appellant’s probation officer, Julie Oden, first testified that the six-month extension to
the appellant’s probation that was ordered by the trial court in November of 2001 was to begin at the
conclusion of his original sentence.2 It appears from the testimony of Ms. Oden that the probation
violation warrant was issued due to the appellant’s failure to report because she stated that the


         1
           No probation violation warrants appear in the record before this Court. The appellant has, however, attached
three probation violation warrants, one from September 27, 2001, one from June 11, 2002, and one from July 17, 2002
to his brief. The State submits on appeal that “the record should be supplemented” to include these warrants, but the
State has not filed a motion to supplement.

         2
          The appellant argues that “the original probation violation was issued after the expiration of his sentence” and
that the November 2001 order extends his probation for six months from the date of the order.

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appellant quit reporting and never gave a reason for not reporting. She also claimed that the
appellant had not completed the required “MRT”3 program as he had only attended four or five out
of the twelve classes. The only other witness to testify was the appellant. He admitted that he
stopped attending classes and reporting to his probation officer because it interfered with his job.
He felt that it was more important to keep his job than to attend classes.

        After hearing the testimony, the trial court found that the appellant “quit reporting” and, thus,
violated the terms of his probation. The trial court entered an order on October 4, 2002, revoking
the appellant’s probation and ordering him to serve his sentence.

        The appellant argues on appeal that the trial court abused its discretion by denying the motion
to dismiss the probation violation warrant as untimely that counsel for the appellant made at the
outset of the hearing. Specifically, he argues that the trial court did not have jurisdiction to hear the
matter because his sentence had expired. He further argues that he did not violate the terms of his
probation because he had permission from his probation officer not to report and the record indicates
that he was attending classes as required by the terms of his probation. The State argues that the
appellant’s sentence had not expired because it was automatically stayed pending appeal. Further,
the State contends that the evidence at the hearing supports the trial court’s decision to revoke the
appellant’s probation.

        A trial court no longer has authority to revoke probation and order service of the original
sentence after a defendant successfully completes a probationary sentence. Tenn. Code Ann. § 40-35-
310 ; State v. Hunter, 1 S.W.3d 643 (Tenn. 1999). In determining the expiration of a sentence of
probation, a defendant is not entitled to credit for time served on probation unless the defendant
successfully completes the entire term of probation. Hunter, 1 S.W.3d at 648. Furthermore, the
expiration of a defendant’s term of probation is stayed by the filing of a violation warrant, but the
probationary term remains in effect until the trial court rules on the violation warrant. State v. Clark,
970 S.W.2d 516, 518 (Tenn. Crim. App. 1998). In State v. Lewis, 917 S.W.2d 251 (Tenn. Crim.
App.1995), this Court held:

         A trial court may exercise its authority over a suspended sentence “at any time within
         the maximum time which was directed and ordered by the court for such
         suspension.” Tenn. Code Ann. § 40-35-310. If a petition to revoke is initiated within
         the term of the sentence, any limitation of the time within which to act is tolled.

Id. at 256 (citations omitted).

       However, due to the scant record on appeal, we are unable to address the issue of whether
the appellant’s sentence had expired at the time the trial court originally extended his probation in


         3
           It is not clear from the record what the “MRT” program consists of or is designed for other than the fact that
there are twelve classes in the program. Although it is not clear from the record, attendance at and completion of the
“M RT” program seems to have been a requirement of the appellant’s probation.

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November, 2001. We cannot ascertain the date of the first probation violation or second probation
violation without a warrant in the record. Further, there is no transcript from a hearing on the first
probation violation. It is the duty of the Appellant to prepare an adequate record for appellate
review. Tenn. R. App. P. 24(b). “When a party seeks appellate review there is a duty to prepare a
record which conveys a fair, accurate and complete account of what transpired with respect to the
issues forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).
Without any proof in the record as to what events actually transpired, we are unable to address this
issue. We would note however that this Court’s records show that on September 21, 2000, the
same day the appellant was sentenced, he filed a notice of appeal to this Court. That appeal was
voluntarily dismissed on February 15, 2001. If the appellant served his 90 day jail term after that
date his original eight-month probationary term would not have begun until May, 2001, and would
not have expired until January, 2002. When a criminal defendant convicted of a misdemeanor and
sentenced to probation appeals his sentence, his sentence is automatically stayed pending the
outcome of his appeal. State v. Lyons, 29 S.W.3d 48, 50 (Tenn. Crim. App. 1999).

        As to the appellant’s argument that the trial court abused its discretion in revoking his
probation, however, we note that a trial court may revoke a defendant’s probation and order him to
serve his sentence upon a finding by a preponderance of the evidence that the person has violated
a condition of probation. Tenn. Code Ann. § 40-35-311(d). 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). We review a trial court’s revocation of probation for an abuse of discretion, rather than
under a de novo standard of review. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Discretion
is abused only if the record contains no substantial evidence to support the conclusion of the trial
court that a violation of probation or community correction sentence has occurred. Id.; State v.
Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation need not be
established beyond a reasonable doubt, and the evidence need only show that the trial judge
exercised a conscientious and intelligent judgment, rather than acting arbitrarily. Harkins, 81 S.W.2d
at 82; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

        In the case herein, the appellant admitted at the hearing that he was guilty of not reporting
to his probation officer, the substance of the alleged violation according to the testimony from the
probation officer. Further, the probation officer’s testimony is entirely consistent with the
appellant’s admission of the violation. We therefore conclude that the trial court did not abuse its
discretion in revoking the appellant’s probation and ordering him to serve the remainder of his
sentence. See State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999) (holding that
defendant’s concession of act constituting violation of probation constitutes substantial evidence of
violation, and trial court’s revocation based thereon is not abuse of discretion).




                                                 -4-
                                          Conclusion

        After a thorough review of the record, we conclude that the trial court did not abuse its
discretion in revoking the appellant’s probation. Accordingly, the judgment of the trial court is
affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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