         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 16, 2002

               STATE OF TENNESSEE v. TIMOTHY A. JOHNSON

                 Direct Appeal from the Criminal Court for Davidson County
                          No. 2000-C-1487    Seth Norman, Judge



                   No. M2001-01362-CCA-R3-CD - Filed February 11, 2002


Pursuant to a plea agreement, the Defendant pleaded guilty to one count of possessing with intent
to sell less than 0.5 grams of a substance containing cocaine, and the trial court sentenced him as a
Range I standard offender to five years incarceration in the workhouse. The trial court suspended
the sentence and placed the Defendant on probation for five years. Approximately four months later,
a warrant was issued against the Defendant alleging that he had violated the terms and conditions
of his probation. The warrant alleged that the Defendant had been arrested for evading arrest and
aggravated assault, that the Defendant had failed to report these arrests to his probation officer, and
that the Defendant had failed to report to his probation officer after being released from jail.
Following a hearing on the warrant, the trial court revoked the Defendant’s probation and ordered
him to serve the remainder of his sentence in confinement. The Defendant now brings this appeal,
in which he challenges the trial court’s order requiring him to serve the remainder of his sentence
in confinement. Because we conclude that the trial court did not abuse its discretion, we affirm the
judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODALL , JJ., joined.

C. Dawn Deaner, Assistant Public Defender (on appeal), Nashville, Tennessee; and Jerrilyn
Manning, Assistant Public Defender (at trial), Nashville, Tennessee, for the Appellant, Timothy A.
Johnson.

Paul G. Summers, Attorney General and Reporter; Gill Robert Geldreich, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Jason Lawless, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

        The Defendant was indicted by the Davidson County Grand Jury for possessing with intent
to sell 0.5 grams or more of a substance containing cocaine, a Schedule II controlled substance.
Pursuant to a plea agreement, the Defendant pleaded guilty to possessing with intent to sell less than
0.5 grams of a substance containing cocaine, and the trial court imposed an incarcerative sentence
of five years. The sentence was immediately suspended, and the Defendant was placed on probation
for five years. At the time of the guilty plea, the Defendant was serving a sentence of incarceration
in Davidson County, which he completed before being released on probation in this case. The
sentence in this case was to be served consecutive to the Defendant’s prior sentence.

        The Defendant entered a plea of guilty on November 16, 2000. On March 23, 2001, a
warrant was issued against the Defendant alleging that he had been arrested on March 22, 2001 for
evading arrest and aggravated assault; that he failed to report these arrests to his probation officer;
and that he failed to report to his probation officer after being released from jail. The trial court
conducted a hearing on the probation violation warrant on May 2, 2001. At the hearing, the
Defendant admitted that the allegations in the probation violation warrant were true, but requested
that the trial court “ . . . not put my sentence in effect . . . .” At the conclusion of the hearing, the trial
court noted that the Defendant had violated probation on at least two prior occasions and that the
Defendant “did not do what he was supposed to do.” The trial court then revoked the Defendant’s
probation and ordered him to serve the balance of the sentence incarcerated.

         When a trial court determines by a preponderance of the evidence that a probationer has
violated the conditions of his or her probation, the trial court has the authority to revoke probation.
Tenn. Code Ann. § 40-35-311(d). The decision to revoke probation lies within the sound discretion
of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). A trial court’s
decision to revoke probation will be upheld on appeal unless there has been an abuse of discretion.
State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). To find an abuse of discretion
in a probation revocation case, an appellate court must conclude that the record is void of any
substantial evidence that would support the trial court’s decision that a violation of the conditions
of probation occurred. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d
395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation is sufficient if it allows the trial
court to make a conscientious and intelligent judgment. State v. Milton, 673 S.W.2d 555, 557 (Tenn.
Crim. App. 1984).

        Although the Defendant does not contest the sufficiency of the evidence supporting
revocation of his probation, he contends that the trial court should not have ordered him to serve his
sentence. The Defendant attempted to explain at the probation revocation hearing that his arrests
for aggravated assault and evading arrest were caused by his vindictive former girlfriend. The
Defendant conceded that he had not done very well on probation in the past and that while on
probation on a prior drug case, he had violated his probation by incurring another drug-related
criminal charge. Although the Defendant testified that he was willing to abide by the terms and
conditions of a probated sentence and that he had learned to avoid contact with his former girlfriend,
the trial court had the opportunity to evaluate the Defendant’s credibility at the hearing and
apparently discredited his testimony.

       The Defendant has failed to establish that the trial court abused its discretion by revoking his
probation and by ordering him to serve the remainder of his sentence in confinement. Upon finding

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a violation of probation, the trial court is authorized by statute to “revoke probation and suspension
of sentence and cause the defendant to commence the execution of the judgment as originally
entered.” Tenn. Code Ann. § 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), superceded by statute as stated in Cox v. State, 53 S.W.3d 287 (Tenn. Crim. App.
2001). Based upon our review of the record, we conclude that the trial court’s determination was
within its discretion.

        Finally, we point out that our determination that the trial court was within its discretion in
revoking the Defendant’s probation and ordering the Defendant to serve his sentence in the
workhouse “answers negatively the Defendant’s plea for further leniency.” State v. Angela Bright,
No. C-12679, 2002 WL 5495, at *2 (Tenn. Crim. App., Knoxville, Jan. 2, 2002). A defendant who
is already on probation is not entitled to a second grant of probation or another form of alternative
punishment. See, e.g., State v. James Moffitt, No. 01C01-9010-CC-00252, 1991 WL 44992, at *1
(Tenn. Crim. App., Nashville, Apr. 4, 1991).

       The trial court’s order revoking the Defendant’s probation and ordering that the Defendant
serve his incarcerative sentence is AFFIRMED.



                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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