            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      March 29, 2011 Session

             STATE OF TENNESSEE v. JOHN RICHARD SPROUSE

                      Appeal from the Circuit Court for Sevier County
                         No. 14457-III    Rex Henry Ogle, Judge


                     No. E2010-01763-CCA-R3-CD - Filed May 16, 2011


The defendant, John Richard Sprouse, appeals the Sevier County Circuit Court’s revocation
of his probation. On appeal, he contends that the trial court erred by ordering him to serve
his six-year sentence in incarceration. Discerning no error, we affirm the judgment of the
trial court.

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

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

Benjamin S. Burton, Sevierville, Tennessee, for the appellant, John Richard Sprouse.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; James B. Dunn, District Attorney General; and Timothy Norris, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                               OPINION

              On December 1, 2009, the defendant pleaded guilty to one count of aggravated
assault, see T.C.A. § 39-13-102, with an agreed sentence of six years’ incarceration
suspended to supervised probation.1 On March 2, 2010, a probation violation report was


        1
          The indictment and judgment in this case indicate a charge of aggravated domestic assault, citing
to Code sections 39-13-102 and -111. We note, however, that there is no such offense proscribed by our
criminal code. Code section 39-13-111 refers to domestic assault with reference to the simple assault statute
proscribed in Code section 39-13-101. There is no corresponding proscription relative to the aggravated
assault of a household or family member. Thus, the indictment and conviction reflect, in effect, a charge of
aggravated assault with a deadly weapon of a victim as defined by Code section 39-13-111(a).
filed alleging that the defendant had absconded from supervision, in addition to committing
other violations by failing to report his address to the sexual offender registry, failing to
maintain employment, moving without the permission of his probation officer, failing to
report his change of address to his probation officer, and failing to pay costs associated with
the sexual offender registry.2 On March 16, 2010, a probation violation warrant issued
alleging similar violations. Following a July 27, 2010 hearing in which the defendant
admitted to the violations, the trial court revoked the defendant’s probation and ordered him
to serve the remaining portion of his six-year sentence in incarceration. Following a timely
notice of appeal, the case is properly before this court.

              On appeal the defendant contends that the trial court violated his due process
rights by ordering him to serve his sentence in incarceration instead of returning him to
probation. The defendant argues that “[i]t is fundamentally unfair to the probationer who has
been promised freedom with the State but to have the State retract that promise when nothing
[the probationer] has done legitimately warrants such an about-face.” The State contends
that, based upon the defendant’s admissions, the trial court did not abuse its discretion by
revoking probation and ordering the sentence to be served in confinement. Following our
review, we agree with the State and affirm the judgment of the trial court.

               A trial court may revoke a sentence of probation upon a finding by a
preponderance of the evidence that the defendant has violated the conditions of his release.
T.C.A. § 40-35-311(e) (2006). A revocation will be upheld absent a showing that the trial
court abused its discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Upon finding
a violation, the trial court may “revoke the probation and suspension of sentence and cause
the defendant to commence the execution of the judgment as originally entered.” T.C.A. §
40-35-311(e). 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).

               The record reflects that the defendant initially passed all his drug screens and
otherwise met the conditions of his probationary release. After February 2010, however, the
defendant changed his address and failed to report to his probation officer. The defendant
admitted that after being warned by his probation officer that he would be “violated,” he “just
got scared really” and stopped reporting. The trial court noted that the defendant had
amassed “[a]t least five violations of probation” in the past and ordered the defendant to
serve the remainder of his sentence in incarceration. Under these circumstances, we see no
basis for disturbing the trial court’s decision to order confinement in response to the


        2
         The defendant had a previous sexual battery conviction which required compliance with the sexual
offender registry conditions.

                                                  -2-
conceded violations of probation. In so affirming the action of the trial court in this case, we
further note that the defendant’s action, or inaction, did “legitimately warrant” the service
of his sentence in confinement, and that, therefore, the defendant suffered no violation of due
process. Accordingly, the judgment of the trial court is affirmed.


                                            _________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE




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