         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 24, 2003

               STATE OF TENNESSEE v. AARON BLAKE FRANZ

                 Direct Appeal from the Circuit Court for Rutherford County
                              No. F-42805    J.S. Daniel, Judge



                  No. M2002-01855-CCA-R3-CD - Filed September 25, 2003


After several opportunities to comply with the conditions of his probation, the trial court ordered the
appellant, Aaron Blake Franz, to serve thirty months in confinement, the original sentence imposed
for the appellant’s burglary conviction. On appeal, the appellant argues that the trial court was
without jurisdiction to revoke his probation because the revocation warrant was filed after the first
extension of the probationary period expired. Upon review of the record and the parties’ briefs, we
affirm the judgment of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE , P.J., and
DAVID H. WELLES, J., joined.

Tony L. Maples, Murfreesboro, Tennessee, for the appellant, Aaron Blake Franz.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; William C. Whitesell, Jr., District Attorney General; and Tom Jackson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

        On October 27, 1997, the appellant pled guilty in the Rutherford County Circuit Court to
burglary. The trial court granted the appellant judicial diversion and placed him on probation for
thirty months. On July 27, 1998, the appellant’s judicial diversion was terminated because he failed
to comply with the conditions of his probation. The trial court entered a judgment of conviction on
the burglary charge and sentenced the appellant to thirty months incarceration in the Tennessee
Department of Correction. The trial court suspended the appellant’s sentence and ordered him to
serve his thirty-month sentence on probation. On August 2, 1999, the trial court revoked the
appellant’s probation because the appellant had failed to report to his probation officer and had been
arrested and convicted for possession of marijuana. Upon the revocation, the trial court reimposed
the original sentence and ordered the appellant placed on probation after serving sixty days in
confinement. On August 25, 2000, the trial court again entered an order revoking the appellant’s
probation due to his failure to report to his probation officer. The trial court placed the appellant
back on probation for thirty months and ordered the appellant to serve 120 days in confinement.
This order provided that upon further violation of probation the appellant would be required to serve
his sentence in confinement.1 On September 12, 2000, the trial court entered an order stating that
the August 25, 2000, revocation order “should have reflected [the appellant] would be on
Community Correction in Lincoln County.”

         On June 25, 2002, the trial court held a hearing on a subsequent allegation that the appellant
had violated his probation. The appellant’s probation officer, Faith Dudley, testified that the
appellant had failed to report since April 5, 2001, and had failed to complete his required community
service. The appellant conceded that he had moved without telling his probation officer and had
stopped reporting. He stated that he had moved in order to be closer to his new job. At the
conclusion of the hearing, the trial court revoked the appellant’s probation and ordered that he “shall
serve the sentence as originally ordered being thirty (30) months, Range 1, 30%, due to repeated
failure to comply with the terms and conditions of probations.” On appeal, the appellant contests
the trial court’s authority to revoke his probation.

                                                  II. Analysis


       Judicial diversion may be granted if a defendant, like the appellant, pleads guilty to a Class
D felony and has not been previously convicted of a felony or a Class A misdemeanor. See Tenn.
Code Ann. § 40-35-313(a)(1)(A) (1997); Tenn. Code Ann. § 40-35-313(a) and (B)(i) (Supp. 2002).
Furthermore, if the defendant violates a condition of probation while on judicial diversion, the court
may enter an adjudication of guilt and proceed with sentencing. See Tenn. Code Ann. § 40-35-
313(a)(2) (1997 and Supp. 2002); see also State v. Johnson, 15 S.W.3d 515, 517 (Tenn. Crim. App.
1999). The trial court did not enter a judgment of guilt until the appellant violated the probationary
term associated with his judicial diversion. Thus, the appellant’s original sentence of thirty months
was imposed on July 27, 1998, which sentence was suspended.

        Upon finding by a preponderance of the evidence that a defendant has violated the terms of
his probation, the trial court is authorized to order the defendant to serve the balance of his original
sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(d) (1997); State v. Harkins,
811 S.W.2d 79, 82 (Tenn. 1991). In the alternative, “at the conclusion of a probation revocation
hearing, the court shall have the authority to extend the defendant’s period of probation supervision
for any period not in excess of two (2) years.” Tenn. Code Ann. § 40-35-308(c) (1997 and Supp.


        1
          The appellant placed his signature on a handwritten notation in the margin of the August 25, 2000, order,
acknowledging that upon further violation o f his pro bation he would be required to serve his o riginal sentence in
confinement.

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2002); see also State v. Hunter, 1 S.W.3d 643, 646 (Tenn. 1999). In short, the trial court may either
impose the original sentence or extend the probationary period by up to two years; it may not do
both. Hunter, 1 S.W.3d at 647.

        Moreover, if a defendant successfully completes a probationary sentence, the trial court has
no authority to revoke probation and order the service of the original sentence. Id. at 646. However,
the trial court does have the authority to revoke a defendant’s probation and order service of the
original sentence if the defendant fails to complete an entire probationary term prior to the violation.
Id. To this end, we note that probation revocation rests in the sound discretion of the trial court and
will not be overturned by this court absent an abuse of that discretion. See State v. Leach, 914
S.W.2d 104, 106 (Tenn. Crim. App. 1995). An abuse of discretion exists when “the record contains
no substantial evidence to support the trial court’s conclusion that a violation has occurred.” State
v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim. App. 1995).

        In his brief, the

                [a]ppellant urges that this court should consider the record in this
                matter and hold that the [t]rial court was without jurisdiction to
                repeatedly extend the [a]ppellant’s probation. Appellant asserts that
                the statute allowing the extension of a probationary period only
                contemplates one such extension in time for a period not to extend
                two years. In this case the probation was extended after the first
                violation warrant. That probationary period would have expired in
                February 26, 2001, thirty months after July 27, 1998 [the date of the
                entry of the judgment of conviction].

        Our supreme court addressed this concern in Hunter, 1 S.W.3d at 646-47. The court noted
that

                [t]he appellant contends that section 40-35-308(c) was designed to
                prevent trial courts from repeatedly revoking and reinstating a
                defendant’s original probation. We disagree. Nothing in the text of
                section 40-35-308(c) prohibits a trial court from causing execution of
                a defendant’s original sentence. Had the legislature intended for the
                statute to limit a trial court’s authority in probation revocation
                proceedings, it could have so provided in the text of the statute. It did
                not. Furthermore, the appellant’s interpretation of section 40-35-
                308(c) overlooks the language in sections 40-35-310 and 40-35-311
                stating that upon revocation a trial court has the authority to impose
                a defendant’s original sentence.

Id. at 647.



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        In the instant case, the trial court first revoked the appellant’s probation on August 2, 1999,
approximately one year after the entry of the judgment of conviction and the imposition of the
original sentence. Thus, it is clear that the appellant did not complete that probationary term prior
to the revocation. Upon the revocation, the trial court reimposed the original sentence of thirty
months, again granting the appellant the largess of probation and ordering the appellant to serve sixty
days in confinement. Subsequently, the appellant again violated the conditions of his probation prior
to completing the thirty-month probationary term. On August 25, 2000, the trial court revoked the
appellant’s probation, instituted the original sentence of thirty months, and allowed the appellant to
serve his sentence on probation after the service of 120 days incarceration. The trial court warned
the appellant that if he violated probation again, the court would order him to serve the original
sentence. Finally, on June 25, 2002, prior to the completion of the thirty-month probationary
sentence, the trial court again revoked the appellant’s probation for failure to report and failure to
complete community service. The trial court, as it was authorized to do under Tennessee Code
Annotated sections 40-35-310 and -311, ordered the appellant serve his original sentence of thirty
months incarceration in the Tennessee Department of Correction. Accordingly, the appellant has
failed to prove any error on the part of the trial court.

                                          III. Conclusion

       Based upon the foregoing, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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