             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                     FILED
                             AT KNOXVILLE                          August 27, 1999

                                                                  Cecil Crowson, Jr.
                           MAY 1999 SESSION                       Appellate C ourt
                                                                      Clerk



STATE OF TENNESSEE,          )
                             )        C.C.A. No. 03C01-9807-CC-00234
      Appellee,              )
                             )        Blount County
v.                           )
                             )        Honorable D. Kelly Thomas, Jr., Judge
ROBIN DeHART,                )
                             )        (Probation Revocation)
      Appellant.             )




FOR THE APPELLANT:                    FOR THE APPELLEE:

JULIE A. MARTIN                       PAUL G. SUMMERS
P. O. Box 426                         Attorney General & Reporter
Knoxville, TN 37901-0426
(On Appeal)                           CLINTON J. MORGAN
                                      Assistant Attorney General
MACK GARNER                           425 Fifth Avenue North
District Public Defender              Nashville, TN 37243-0493
419 High Street
Maryville, TN 37804                   MICHAEL L. FLYNN
(At Trial)                            District Attorney General

                                      EDWARD P. BAILEY, JR.
                                      Assistant District Attorney General
                                      Blount County Courthouse
                                      363 Court Street
                                      Maryville, TN 37804-5906




OPINION FILED: ___________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                      OPINION

       The defendant, Robin DeHart, appeals the order of the Blount County Circuit Court

revoking her probation and ordering that she serve 124 days in jail. The basis for this

appeal is the defendant’s contention that the trial court should not have revoked her

probation and ordered her to serve 124 days because she had completed rehabilitation

programs while in federal custody, between the time of the filing of the violation of

probation affidavit and the state court revocation hearing. Based upon our review of the

record and applicable law, we affirm the order of the trial court.



       On November 15, 1993, the defendant was indicted in Blount County for six felony

drug counts. She entered a guilty plea on October 4, 1994, to two counts of sale and

delivery of a Schedule IV controlled substance. Her presentence report was filed on

November 3, 1994; and, on November 28, 1994, the defendant was sentenced to two

concurrent two-year sentences. The defendant was granted immediate probation, ordered

to pay fines of $2,000 in each case and to complete 100 hours of community service, and

required to undergo substance abuse and psychological evaluations and to follow the

recommendations.



       On March 5, 1996, the defendant made a court appearance on a first violation of

probation report. On April 16, 1996, she was ordered to serve thirty days in jail and then

continue with her probationary sentence. The following day, April 17, 1996, the defendant

was arrested on federal bank robbery charges and received a sentence of thirty months,

followed by three years of supervised release. The defendant also violated the conditions

of her probation by testing positive for cocaine on three separate occasions. On April 18,

1996, a second violation of probation warrant was filed, with the report being submitted to

the court on June 7, 1996. The hearing was held on July 6, 1998, after the defendant had

been released from federal custody, at which time the court revoked the defendant’s

probation and ordered her to serve 124 days in jail, during which time she was eligible for

work release. The defendant had been in federal custody from April 17, 1996 until June

22, 1998.

                                             2
       During the time she was in federal custody, the defendant completed several of the

available programs. Among those were a 500-hour drug treatment program, drug abuse

aftercare, and Bible studies. She began paying federal restitution while serving her federal

sentence but still owes approximately $4,000.



       The defendant contends that the trial court should have either granted her probation

or imposed a jail sentence of less than 124 days. We will consider both of these issues.



       The authority of this Court is quite limited in passing upon the action of the trial court

in imposing a sentence following the revocation of a suspended sentence. Tennessee

Code Annotated § 40-35-310 sets out the authority of the trial court in this regard.

Tennessee Code Annotated § 40-35-311(e) provides that the trial court, upon finding that

the defendant has violated the conditions of probation and suspension, “shall have the right

. . . to revoke the probation and suspension of sentence and cause the defendant to

commence the execution of the judgment originally entered, or otherwise in accordance

with § 40-35-310.” In this case, since the defendant was convicted on federal bank robbery

charges after being granted probation, it is clear that the trial court did not abuse its

discretion in revoking her probation as a result. State v. Harkins, 811 S.W.2d 79, 82

(Tenn. 1991) (an abuse of discretion does not occur unless the record “contains no

substantial evidence to support the conclusion of the trial judge that a violation of the

conditions of probation has occurred”).



       The defendant also argues that since the trial court altered her original sentence,

reducing it from two years to 124 days,1 the court was required to utilize the regular

sentencing considerations, citing State v. Leach, 914 S.W.2d 104, 107 (Tenn. Crim. App.



       1
           During the probation violation hearing, the trial court calculated the defendant’s release
eligibility, in serving thirty percent of a two-year sentence to be about 7.2 months. Citing her
rehabilitative efforts while in prison, the court halved the time which she was to spend in
incarceration to 108 days, or about 3.6 months, in effect doubling her jail credit. The trial court also
ordered that the thirty days which she was to serve in jail, but had not, following the first time that
her suspended sentence was revoked, be served consecutively to the 108 days. Finally, the trial
court ordered that she be eligible for work release during her period of incarceration.

                                                   3
1995). In Leach, the defendant had been convicted initially of three drug offenses and

sentenced to three concurrent three-year sentences, with the sentences to be suspended

after serving 120 days. While these sentences were in effect, the defendant was convicted

of another drug offense and sentenced to two years imprisonment, with all but thirty days

suspended. The trial court then ordered that the defendant was to be incarcerated for the

balance of the sentences and that the second sentence was to be served consecutively

to the first. The defendant argued that the court should have considered sentence

alternatives, such as intensive probation. This Court found no abuse of discretion in

ordering that the defendant be incarcerated for the balance of his sentences and, further,

that the trial court was correct in applying Rule 32(c)(2) to order that the sentences be

served consecutively. We note that, in Leach, the original sentence imposed on the

defendant by the court was not altered and reduced, as is the situation here.



       In this case, the defendant has made impressive efforts while in federal custody

towards rehabilitation. The trial court conducted a hearing on the violation of probation2

and, after hearing testimony from the defendant and reviewing various certificates which

she presented regarding her efforts at rehabilitation, stated its concerns in the matter. The

defendant had previously violated the conditions of her probation and had been convicted

of bank robbery. The court believed that the courses taken by the defendant indicated that

she was more likely to be rehabilitated, but, not knowing the contents of the courses,

considered the “degree” of the rehabilitation to be questionable. However, in view of all

that the defendant accomplished while in federal custody, the trial court found that she was

entitled to “substantial modification” of her sentence. Accordingly, the court allowed her

to have what it calculated to be “two-for-one credit because of what she’s done while in

prison,” and, further, ordered that the thirty days still unserved as the result of her first

revocation be served consecutively to the 108 day sentence, with work release eligibility.

From all of this, we believe the trial court properly considered available sentencing

alternatives, and that, as a result, the order of the trial court should be affirmed.




       2
           This was the second time that the defendant had violated her probation.

                                                 4
     For these reasons, the order of the trial court is affirmed.



                                    ________________________________________
                                    ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JAMES CURWOOD WITT, JR., JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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