         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs July 18, 2001

                   STATE OF TENNESSEE v. MICHAEL FIELDS

                   Appeal from the Circuit Court for Montgomery County
                  Nos. 29489, 30252, 37147   John H. Gasaway, III, Judge


                    No. M2000-01657-CCA-R3-CD - Filed October 12, 2001


In 1992, the defendant, Michael Fields, was convicted of two counts of sale of cocaine; the trial court
imposed concurrent sentences of eight years in community corrections. In 1993, the defendant pled
guilty to possession of cocaine with intent to sell; the trial court imposed an additional sentence of
eight years in community corrections and ordered it to be served concurrently with the 1992
sentences. In February of 1997, the trial court revoked the community corrections sentences and
ordered the defendant to serve the remainder of his sentences in the Department of Correction. In
May of 1997, the defendant entered a plea of nolo contendere to possession with intent to sell less
than one-half gram of cocaine; the trial court imposed a sentence of three years, consecutive to his
prior sentences, for an effective sentence on all offenses of 11 years, and granted probation. On July
1, 1998, a probation violation warrant was filed in all three cases. The defendant was ordered to
serve 30 days of periodic confinement for the violations. On August 1, 1999, another probation
violation warrant, which was later amended, was served on the defendant. Ultimately, probation in
all three cases was revoked. In this appeal of right, the defendant complains that he had completed
his sentence and the trial court had no authority to revoke probation. In the alternative, the defendant
argues that if the sentence had not been completed, he should have been returned to intensive
probation. The judgments are affirmed.

                  Tenn. R. App. P. 3; Judgments of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.

Thomas Meeks, Clarksville, Tennessee (at trial), Gregory D. Smith, Clarksville, Tennessee (on
appeal), and Roger Nell, Public Defender (on appeal), for the appellant, Michael Fields.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; and
Daniel Brollier, Assistant District Attorney General, for the appellee, State of Tennessee.
                                              OPINION

        At the probation revocation hearing, Gary Hammer, a probation officer, testified that the
defendant was released on probation by determinant release on February 17, 1998. The probation
violation warrant and its amendment alleged that the defendant had violated the terms of his sentence
by being arrested for simple possession of marijuana and for having failed to report, as required, for
a period of approximately six months. The probation officer confirmed that the defendant did not
report his new arrest, that the defendant had committed several curfew violations, and that he had
changed addresses without providing any notification of his whereabouts.

        While conceding that he had failed to report his arrest, the defendant testified that the charge
of simple possession of marijuana had ultimately been dismissed. He acknowledged that during the
pendency of the charge, he had failed to report to his probation officer for a period of six months.
He admitted that he changed addresses without informing the officer, but claimed that he had noted
the change on "[t]he weekly fill-out sheets." The defendant testified that he merited an alternative
sentence because he was living with his mother, who needed his assistance due to her poor physical
health, and because he planned to marry his girlfriend, who was pregnant with his child. The
defendant claimed to be the sole source of income for both his mother and his girlfriend.

        Marie Kelly, the defendant's girlfriend, testified that she was five months pregnant and unable
to work because of surgery related to two prior miscarriages. Also charged with possession of
marijuana with the defendant, she confirmed that both of the charges had been dismissed. Ms. Kelly
stated that while the charges were pending, the defendant became fearful that he would be returned
to the Department of Correction. She testified that the defendant no longer stayed out late and that
he was gainfully employed, supporting both her and his mother.

         At the conclusion of the hearing, the trial court first observed that the defendant had violated
the terms of his probation in 1997 and had been sentenced to the Department of Correction. It
determined that the defendant had been released under the Determinant Release Program and again
had violated the terms of his probation by failing to report to his probation officer and by otherwise
failing to comply with the "rules, regulations, terms and conditions" of his release. Because the trial
court's May 10, 1999, probation violation orders did not specify a return to probation after the 30
days' confinement and because the final set of warrants was not filed until August 1, 1999, the
defendant argues that the sentences should have been completed and that the trial court was without
jurisdiction to consider the probation violation. In the alternative, the defendant argues that because
he had stayed away from illegal drug use, was mannerly and cooperative, and had provided support
to his mother and girlfriend, the trial court abused its discretion by failing to order a more intensive
probation.

       Our general law provides that a trial court may revoke a sentence of probation upon finding
by a preponderance of the evidence that the defendant has violated the conditions of his release.
Tenn. Code Ann. § 40-35-311(e) (Supp. 2000). On appeal, a revocation will be upheld absent an
abuse of discretion. In order to establish that the trial court has abused its discretion, the defendant


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must show that there is no substantial evidence to support the determination that he violated his
probation. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Relief can be granted only when the
trial court's logic and reasoning were improper when viewed in the light of the factual circumstances
and the legal principles involved. State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001). The trial
judge is not required to find that a violation of the terms of probation has occurred beyond a
reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). Rather, the
existence of a violation of probation need only be supported by a preponderance of the evidence.
Tenn. Code Ann. § 40-35-311(e) (Supp. 2000). The same principles applicable to a probation
revocation are relevant to the revocation of a community corrections sentence. Harkins, 811 S.W.2d
at 83.

        The purpose of the Community Corrections Act of 1985 was to provide an alternative means
of punishment for "selected, nonviolent felony offenders in front-end community based alternatives
to incarceration." Tenn. Code Ann. § 40-36-103(1). The community corrections sentence provides
a desired degree of flexibility that may be both beneficial to the defendant and serve legitimate
societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990). That a defendant meets the
minimum requirements of the Community Corrections Act of 1985, however, does not mean that
he or she is entitled to be sentenced under the Act as a matter of law or right. See State v. Taylor,
744 S.W.2d 919, 922 (Tenn. Crim. App. 1987). The following offenders are eligible for community
corrections:

                (1) Persons who, without this option, would be incarcerated in a correctional
       institution;
                (2) Persons who are convicted of property-related, or drug/alcohol-related
       felony offenses or other felony offenses not involving crimes against the person as
       provided in title 39, chapter 13, parts 1-5;
                (3) Persons who are convicted of nonviolent felony offenses;
                (4) Persons who are convicted of felony offenses in which the use or
       possession of a weapon was not involved;
                (5) Persons who do not demonstrate a present or past pattern of behavior
       indicating violence;
                (6) Persons who do not demonstrate a pattern of committing violent offenses;
       and
                Persons who are sentenced to incarceration or on escape at the time of
       consideration will not be eligible.

Tenn. Code Ann. § 40-36-106(a) (Supp. 2000).

      Once a defendant violates the terms of his community corrections program, the trial court
may revoke the sentence and impose a new one:

              The court shall also possess the power to revoke the sentence imposed at any
       time due to the conduct of the defendant or the termination or modification of the


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       program to which the defendant has been sentenced, and the court may resentence the
       defendant to any appropriate sentencing alternative, including incarceration, for any
       period of time up to the maximum sentence provided for the offense committed, less
       any time actually served in any community-based alternative to incarceration.

Tenn. Code Ann. § 40-36-106(e)(4) (Supp. 2000).

        Trial courts may exercise authority over a suspended sentence "at anytime within the
maximum time which was directed and ordered by the court for such suspension." Tenn. Code Ann.
§ 40-35-310. The filing of a probation violation warrant, however, tolls the time within which the
trial court may revoke probation. State v. Lewis, 917 S.W.2d 251, 256 (Tenn. Crim. App. 1995).

         The record demonstrates that the defendant had repeatedly violated his community
corrections and probationary sentences. In this instance, the defendant acknowledged that he had
been placed under arrest without notifying his probation officer and conceded that he had failed to
report as required by the terms of his release for a period of six months. Under these circumstances,
the trial court did not abuse its discretion by concluding that the defendant had violated the terms of
his release and by ordering the defendant to serve the remainder of his sentences in the Department
of Correction.

        Moreover, the defendant was initially sentenced on February 19, 1992. A probation violation
warrant was filed on August 1, 1999, and, although not served until March 21, 2000, the filing was
well within the term of the initial eight-year sentences and all proceedings took place within eight
years of the 1993 convictions. Although, as the defendant correctly notes, the trial court's May 10,
1999, violation orders do not specify a return to probation following the required 30 days'
confinement, they do not purport to revoke the defendant's probationary sentences. In our view, the
trial court had authority to revoke the probation.

       Accordingly, the judgment is affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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