            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                          JUNE SESSION, 1999


                                                                FILED
STATE OF TENNESSEE,                )                         August 4, 1999
                                   )   No. 02C01-9812-CR-00375
      Appellee                     )                       Cecil Crowson, Jr.
                                   )   SHELBY COUNTY Appellate Court Clerk
vs.                                )
                                   )   Hon. James C. Beasley, Jr., Judge
STACY L. FLEMING,                  )
                                   )   (Sentencing)
      Appellant                    )



For the Appellant:                     For the Appellee:

Marty McAfee                           Paul G. Summers
Asst. Shelby Co. Public Defender       Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103                      Patricia C. Kussmann
                                       Assistant Attorney General
                                       Criminal Justice Division
A C WHARTON, JR.                       425 Fifth Avenue North
Shelby Co. Public Defender             2d Floor, Cordell Hull Building
                                       Nashville, TN 37243-0493


                                       William L. Gibbons
                                       District Attorney General

                                       Robert Carter
                                       Asst. District Attorney General
                                       201 Poplar Avenue
                                       Third Floor
                                       Memphis, TN 38103



OPINION FILED:

AFFIRMED; REMANDED FOR RESENTENCING



David G. Hayes
Judge
                                       OPINION

        The appellant, Stacy L. Fleming, appeals the decision of the Shelby County
Criminal Court revoking his probation and remanding him to the Department of
Correction for service of his original eight year sentences. In his sole assignment of
error, the appellant questions “[w]hether the trial court has jurisdiction to amend or
modify a determinate release probation determination made by the Tennessee
Department of Correction.”

       We conclude that the trial court does have the authority to amend or modify a
probated determinate release sentence after finding a violation of the conditions of
probation. Accordingly, we remand to the trial court for consideration of permissible
sentencing options in accordance with Tenn. Code Ann. §§ 40-35-308, -310, -311
(1997).

       On February 13, 1995, the appellant pled guilty to three counts of possession
of cocaine with intent to deliver, class B felonies. Pursuant to a negotiated plea
agreement, the trial court sentenced the appellant to three concurrent eight year
sentences in the Tennessee Department of Correction. On January 31, 1996,
TDOC placed the appellant on determinate release probation after the appellant’s
successful completion of the boot camp program. Subsequently, a revocation
warrant alleging various violations of the terms and conditions of his release issued
in January 1998. A hearing was held on November 5, 1998.


        At the revocation hearing, Robert Todd, the appellant’s probation officer,
testified that the appellant was in non-compliance with the terms and conditions of
his probation. Specifically, Todd recounted that :
        [On] June 20th of 1997, [the appellant] was arrested in Tipton County
        for simple possession of marijuana, reckless endangerment, vehicular
        assault, two counts, felony evading arrest. On March the 20th of 1998,
        he was indicted on a felony evading arrest and that has been set for
        Court on November 18th of this year.

       And he owes $845.00 on his probation fees. And I checked with the
       clerk’s office here and he has not paid any on his Court costs.

       And he has absconded from probation. The last time I met with him
       was on March 6th of 1998. And I’ve sent numerous letters and phone
       calls.



The appellant conceded that he had violated the conditions of his release status on

numerous occasions, although he explained that “at the time there was a lot of

problems occurring in my life and I just failed to maintain my responsibilities, sir. I’m

very sorry for it.”



       The trial court found that the appellant had violated the terms of his probation

and reinstated the original judgments of conviction. The court, in pronouncing its

decision, concluded, however, that it lacked jurisdiction to amend or modify the

                                          2
terms of the probated sentence. Rather, the court acted under the belief that, if it

determined that the appellant violated the conditions of probation, the court had no

authority other than to revoke probation and order confinement.1




                                                 Analysis



       After a review of the record, we find the trial court mistaken in its

interpretation of its authority in the present case. Tenn. Code Ann. § 40-20-206

(1997) authorizes the trial court to revoke an offender from release status imposed

by the Department of Correction after completion of the boot camp program in

accordance with the provisions of § 40-35-311(1997). See also State v. Ronnie

William Taylor, No. 02S01-9704-CC-00028 (Tenn. at Jackson, June 7, 1999) (for

publication); State v. Bruce Cole, No. 02C01-9708-CC-00324 (Tenn. Crim. App. at

Jackson, June 11, 1998). Thus, the trial court’s authority for revoking an offender

from a Department of Correction release status does not differ from its authority to


      1
       The court opined:
      Since he’s been sentenced to the Tennessee Department of Corrections [sic], the
      violations imposed are actually violations . . .based on the agreement that he had
      with the T ennes see D epartm ent of C orrection s [sic].

      I do not think that I have the authority to do anything other than pass on whether
      or no t there ’s bee n a vio lation . W heth er I ca n am end it. W heth er I ca n ke ep him
      out on pr obation. W hether o r not I can c hange it to Com mun ity Correction s.
      W hether o r not I can d o anything. I d on’t think I ha ve the au thority to do tha t.

      I think based upon the fact that he’s been released by the Department of
      Correc tions [sic], afte r being se ntence d to the D epartm ent of C orrection s [sic], . .
      .I lose jurisd iction over him . I have the a utho rity to pa ss o n wh ethe r or no t there ’s
      a techn ical violation. An d if there is, I do n’t think I hav e any othe r choice , but to
      grant it.
      ...
      . . . if the Departm ent of Corrections [sic] . . .proved that he’s violated . . . if I
      dism iss it, or if I don’t revo ke it, then in e ffect, I’m putting him on prob ation . . .
      and I don’t think I’ve got that authority anymore. Because I think he’s in the
      custod y of the Te nness ee De partm ent of C orrection s [sic].
      ...
      . . .[T]he only options that I have are to either find that there’s been a violation, or
      that there has not been a violation. And in the event that I find there is a violation,
      I do not think that I have the right or the authority to refuse the State’s petition,
      based on the fact that this is a special situation set up by the Tennessee
      Depa rtmen t of Corre ctions [sic].



                                                    3
revoke an offender from judicially imposed probation.



        If the trial court finds, by a preponderance of the evidence, that the defendant

has violated the conditions of his probation, the court has the authority to revoke the

probation and reinstate the judgment as originally entered. See Tenn. Code Ann. §

40-35-311(d); State v. Ronnie William Taylor, No. 02S01-9704-CC-00028. The trial

court also retains the option to “make the conditions of supervision more onerous

than those originally imposed” and/or “extend the defendant’s period of probation

supervision for any period not in excess of two years.” See Tenn. Code Ann. § 40-

35-308 (b), (c) (1997); See also State v. Bruce Cole, No. 02C01-9708-CC-00324.

Thus, the trial court, upon a finding that the defendant has violated a condition of

probation, may either reinstate the judgment as originally entered or modify and/or

amend the conditions of his probated sentence.2 See Tenn. Code Ann. §§ 40-35-

308; -310; -311; State v. Bowling, 958 S.W.2d 362, 363 (Tenn. Crim. App. 1997).



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

discretion, rather than a de novo standard. See State v. Stubblefield, 953 S.W.2d

223, 226 (Tenn. Crim. App. 1997) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn.

1991); State v. Delp, 614 S.W.2d 395 (Tenn. Crim. App. 1980)); State v. Augusta

Thomas Robinson, No.03C01-9709-CR-00405 (Tenn. Crim. App. at Knoxville, June

3, 1998). This means that, if the record presents substantial evidence to support

revocation, the trial court’s action will be approved. Id. (citing Harkins, 811 S.W.2d

at 82). In other words, the evidence need only show that the trial judge has

exercised “conscientious and intelligent judgment in making the decision rather than

acting arbitrarily.” See State v. Leach, 914 S.W.2d 104, 107 (Tenn. Crim. App.

1995) (citing Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980), perm. to

appeal denied, (Tenn. 1981)). Thus, in reviewing the trial court’s action, it is our


        2
        The trial court may also “order the term of imprisonment imposed by the original
judgment be s erved consecutively to any sentence which was im posed upon su ch conviction.”
See Tenn. Code A nn. §40-35-310 (1997).

                                               4
obligation to examine the record and determine whether the trial court has exercised

a conscientious judgment. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim.

App. 1991).



       In the present case, the trial court found that the appellant violated various

conditions of his probation. The record contains ample evidence to support this

conclusion. Accordingly, this finding was not an abuse of the court’s discretion.

However, the court reinstated the appellant’s original sentences based solely on the

ground that the court had no other option but to order execution of the original

judgment. Again, statutory authority provides the trial court discretion in determining

whether a probationer who violates the privilege of probation should have his

original sentence imposed or the conditions of such sentence amended or modified.

See State v. Ricky Aaron Brinkley, No. 01C01-9401-CR-00013 (Tenn. Crim. App. at

Nashville, Aug. 11, 1994). Indeed, the law requires the trial judge to conscientiously

consider what punishment will best serve the public and the defendant. State v.

Ricky Aaron Brinkley, No. 01C01-9401-CR-00013. The trial court based its decision

solely on the basis that it lacked jurisdiction to act otherwise. Thus, the court’s

decision cannot be found to be the result of the exercise of conscientious and

intelligent judgment. Accordingly, we conclude that the trial court abused its

discretion in ordering the imposition of the appellant’s original sentence. Because

the trial court failed to enter any other findings relative to its decision to reinstate the

appellant’s original sentence, we find it necessary to remand this case for proper

consideration of the various sentencing options in accordance with Tenn. Code Ann.

§§ 40-35-308; -310 ; and -311(d).



       Accordingly, the judgment of the trial court finding the appellant to be in

violation of the condition(s) and terms of his probated release status is affirmed.

However, because we find that the court abused its discretion in reinstating the

appellant’s original sentence, this cause is remanded to the trial court for


                                           5
consideration of authorized sentencing options.




                                                  DAVID G. HAYES, Judge




CONCUR:




DAVID H. WELLES, Judge




NORMA OGLE, Judge




                                       6
