        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 22, 2013

          STATE OF TENNESSEE v. LAMOUR ASHLEIGH SLIGH

                   Appeal from the Circuit Court for Blount County
                      No. C-16573     David R. Duggan, Judge


                 No. E2012-02097-CCA-R3-CD - Filed June 24, 2013


The defendant, Lamour Ashleigh Sligh, was charged by information in the Blount County
Circuit Court with possession with intent to deliver not less than one-half ounce of
marijuana, a charge to which he pleaded guilty in 2007, agreeing to a suspended, two-year,
Range I sentence. Following a series of probation revocations, the trial court revoked the
probation in 2012 and ordered the defendant to serve the balance of his original sentence.
We affirm the trial court’s order.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and C AMILLE R. M CM ULLEN, J., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mack Garner, District Public
Defender (at trial), for the appellant, Lamour Ashleigh Sligh.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Matthew Dunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               The judgment imposing the two-year sentence was entered on June 29, 2007,
and would have expired on June 29, 2009, if left undisturbed. A 2008 probation violation
report led to a 2008 revocation of probation and an order to serve 30 days in incarceration.
A subsequent 2008 probation violation report led to a revocation of probation on May 8,
2009, and an order requiring the defendant to serve the balance of his original sentence.
Apparently, this order effectively ended the initial probation term. See T.C.A. § 40-35-
310(a) (stating that, in revoking probation and ordering the imposition of the original
incarcerative sentence, the court may “annul the suspension”).

                The record reveals that the defendant was released on September 20, 2009,
presumably pursuant to Code section 40-35-501, which provides, “Notwithstanding any other
provision of law, inmates with felony sentences of two (2) years or less shall have the
remainder of their original sentence suspended upon reaching their release eligibility date.”
T.C.A. § 40-35-501(a)(3); see id. § 40-35-104(b)(1) (felony sentences of more than one year
but less than three years served in the local jail or workhouse); see also id. § 40-35-212(c)
(trial court retains jurisdiction over the manner of service of a sentence to the local jail or
workhouse). A violation of probation report was filed on January 7, 2011, that led to a
revocation of probation on February 28, 2011, and an order to return the defendant to
supervised probation and to extend his probation period for one year. See id. § 40-35-
501(a)(7); -308(c) (giving trial court authority, upon revocation, to “extend the defendant’s
period of probation supervision for any period not in excess of two (2) years”).

              A subsequent probation violation report was filed on December 21, 2011, that
led to a March 19, 2012 revocation of probation and an order to serve 60 days’ incarceration
and to extend the probation period for an additional year. Yet another probation violation
report was filed on May 29, 2012, that led to a September 28, 2012 order requiring the
defendant to serve the balance of his sentence in incarceration. From this order, the
defendant filed a timely appeal.

               In the revocation hearing, the defendant’s probation officer testified roughly
to the procedural history as outlined above. He testified that the revocation at issue emanated
from the defendant’s (1) moving his residence without informing the probation office, (2)
failing to report to supervised probation following his serving 60 days in jail, and (3) failing
to pay court costs and supervision fees.

               The defendant testified and admitted that he failed to report after being released
from jail. He testified that, upon his release, he asked the “guards” whether he was required
to report and that they responded, “[I]t doesn’t say, only thing you’re supposed to do is pay
your fines.” He said that he asked the “guards” whether they were sure and that they
responded, “[T]hat’s it. And they walked me right outside.”

               The defendant testified that he had not paid his fine and costs because he had
“just now started working with DuPont Tate & Lyle.” He said he earned $12.50 per hour and
brought home $1,127 biweekly. He testified that he changed his residence from his previous
residence at his wife’s parents’ home because his wife left. He said he moved to his mother’s
home in Knoxville.



                                               -2-
              On cross-examination, the defendant testified that the State had “ke[pt]
extending [his probation] because of [his] fees.” He maintained that his prior revocation
issues were the nonpayment of fees.

               The trial court held that the defendant had “engaged in a material violation of
the terms of his probation, based upon moving from his last known address without notifying
his officer and being in the category of . . . absconder because of that; failing to report;
failing to pay his costs and supervision fees.”

              The court found that the current revocation was the fifth revocation of the
defendant’s probation. The court further found that three of the previous violations involved
failures to report, one involved a failure to report an arrest, three involved failures to
maintain employment, and one involved an arrest for driving on a suspended license. The
court determined that “[t]here’s no reason to believe [the defendant] is going to comply with
the terms of probation and his probation is revoked and I order him to serve his sentence.”

               Following the announcement of the ruling, defense counsel stated that he was
not prepared to address the issue of sentence credits. The trial judge then stated, “He’ll
certainly be given all credit that he’s entitled to for time served. And that will be supplied
by a separate order.” 1

               On appeal, the State’s sole issue on appeal is that the defendant has waived his
appellate issue due to his failure to properly brief the issue. See Tenn. R. Ct. Crim. App.
10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.”).

                 “The accepted appellate standard of review of a probation revocation is abuse

        1
          As such, this revocation order did not finalize the case. In and of itself, the order would not have
been appealable. See T.C.A. § 16-5-108(a)(1); State v Comer, 278 S.W.3d 758, 760 (Tenn. Crim. App.
2008); State v. Maddox, 603 S.W.2d 740, 741 (Tenn. Crim. App. 1980). A subsequent order awarding jail
credits was filed but not until nearly three weeks after the filing of the defendant’s notice of appeal. A strong
principle in our law of transition between the trial court and the appellate court is that “[t]he jurisdiction of
the Court of Criminal Appeals attaches upon the filing of the notice of appeal and, therefore, the trial court
loses jurisdiction.” See State v. Pendergrass, 937 S. W.2d 834, 837 (Tenn. 1996). Pursuant to this rule, the
filing of the notice of appeal before the trial court finalized its revocation order eclipsed the trial court’s
power to enter the second order. On the other hand, in that situation, the “appeal” of the inchoate revocation
order would have resulted in a dismissed appeal, leading to a remand, the ultimate curing of the revocation
order by the revival of the second order, and likely a new and proper appeal. We have determined that this
circular process can be averted by treating the second order as the order finalizing the defendant’s revocation
so that the intervening filing of the notice of appeal may be regarded as innocuously premature. See Tenn.
R. App. P. 4(d).

                                                      -3-
of discretion.” State v. Farrar, 355 S.W.3d 582, 585 (Tenn. Crim. App. 2011). Generally,
“[a] trial court abuses its discretion when it applies incorrect legal standards, reaches an
illogical conclusion, bases its ruling on a clearly erroneous assessment of the proof, or
applies reasoning that causes an injustice to the complaining party.” State v. Terry Phelps,
329 S.W.3d 436, 443 (Tenn. 2010). The 1989 Sentencing Act expresses a burden of proof
for revocation cases: “If the trial judge finds that the defendant has violated the conditions
of probation and suspension by a preponderance of the evidence, the trial judge shall have
the right by order duly entered upon the minutes of the court to revoke the probation and
suspension of sentence. . . .” T.C.A. § 40-35-31 1(e)(1). 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).

                In the present case, the record shows that the defendant violated the terms of
his probation, and the defendant conceded, at least, that he did so by not paying his fine and
costs and by changing his place of residence without permission. Accordingly, the trial
court’s determination that the defendant violated his probation is supported in the record.
Furthermore, the defendant’s chronic failures in following the rules of probation justify the
trial court’s ordering him to serve the balance of his original sentence.

              We hold that the trial court acted within its discretion, and we affirm the order
of revocation and the imposition of the original sentence.


                                                    JAMES CURWOOD WITT, JR., JUDGE




                                              -4-
