         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 13, 2000

                STATE OF TENNESSEE v. KEVIN WAYNE BRIM

                    Appeal from the Circuit Court for Williamson County
                        No. II-997-348    Timothy L. Easter, Judge



                   No. M1999-01925-CCA-R3-CD - Filed February 9, 2001


The defendant appeals from the revocation of his probation, contending that the trial court erred in
ordering consecutive sentences. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ALAN
E. GLENN, JJ., joined.

Jefre S. Goldtrap, Nashville, Tennessee, attorney for the appellant, Kevin Wayne Brim.

Paul G. Summers, Attorney General and Reporter; Marvin E. Clements, Jr., Assistant Attorney
General; Ronald L. Davis, District Attorney General; and Sharon E. Tyler, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        On September 19, 1997, the defendant, Kevin Wayne Brim, pled guilty to theft of property
over $1,000, a Class D felony, and the Williamson County Circuit Court sentenced him as a Range
I, standard offender to four years, which were suspended and to be served on supervised probation.
On April 19, 1999, the defendant pled guilty in the Rutherford County Circuit Court to possession
of more than one-half gram of cocaine with intent to sell, a Class B felony. A probation violation
warrant was filed in Williamson County, listing the Rutherford County conviction and stating that
the defendant had tested positive for marijuana on March 4, 1999. A hearing was held on November
15, 1999, and the defendant admitted that he had violated his probation. The trial court found
accordingly and ordered the original sentence to be served consecutively to the sentence for his
Rutherford County conviction. On appeal, the defendant contends that the trial court erred by
ordering the sentences to run consecutively.

        The trial court has discretion to order consecutive sentences when the defendant is convicted
of a crime while on probation. Tenn. Code Ann. § 40-35-310 (“[I]n any case of revocation on
account of conduct by the defendant which has resulted in a judgment of conviction against him
during his period of probation, the trial judge may order that the term of imprisonment be served
consecutively to any sentence which was imposed upon such conviction.”); see State v. Moore, 942
S.W.2d 570, 571 (Tenn. Crim. App. 1996). In this case, it is undisputed that the defendant was
convicted for possession of more than one-half gram of cocaine with intent to sell, a Class B felony,
while on probation. Moreover, the trial court noted the defendant’s extensive criminal history, which
included a 1992 conviction for possession of cocaine and eleven driving offenses, including driving
under the influence and driving on a revoked license. The trial court properly exercised its discretion
in ordering the sentence to be served consecutively to the Rutherford County sentence. See also
Tenn. Code Ann. § 40-35-115(2), (6).

       The defendant does not contest the above analysis. Rather, he relies on Tenn. R. Crim. P.
32, which states in relevant part:

       If the defendant has additional sentences not yet fully served as the result of
       convictions in the same court or in other courts of this state and if this fact is made
       known to the court prior to sentencing, the court shall recite this in the judgment
       setting sentence, and the sentence imposed shall be deemed to be concurrent with the
       prior sentence or sentences, unless it affirmatively appears that the new sentence
       being imposed is to be served consecutively with the prior sentence or sentences.

Tenn. R. Crim. P. 32(c)(2). The defendant asserts that the state had notice of his conviction and
probation in Williamson County when he pled guilty in Rutherford County. He argues that because
the Rutherford County Circuit Court did not order his possession sentence to run consecutively to
his previous Williamson County theft sentence, the Williamson County court should not be allowed
to order consecutive sentences upon the subsequent revocation of probation regarding the theft
conviction. We have previously recognized that there “are three separate statutory provisions or
rules which are relevant to . . . consecutive sentences.” Moore, 942 S.W.2d at 571. The three
provisions are Tenn. Code Ann. § 40-35-115, Tenn. Code Ann. § 40-35-310, and Tenn. R. Crim. P.
32. “The mere fact that the defendant may escape consecutive sentencing under one rule or statute
does not bar consecutive sentencing based on another statute.” Id. Therefore, although the
Rutherford County court did not impose consecutive sentences, the Williamson County court was
not prevented from exercising the discretion granted to it by Tenn. Code Ann. § 40-35-310 and
imposing consecutive sentences when it revoked the defendant’s probation based upon his
conviction while he was on probation.

       Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court.




                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE


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