         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 18, 2004

                 STATE OF TENNESSEE v. JODY LEE TURNER

                  Appeal from the Criminal Court for Cumberland County
                      Nos. 7280 and 7454    Leon Burns, Jr., Judge



                  No. E2004-00060-CCA-R3-CD - Filed November 29, 2004


Following his guilty plea to two counts of theft, the defendant, Jody Lee Turner, was sentenced in
the Cumberland County Criminal Court to an effective four-year term to be served on probation,
supervised by a community corrections program agency. A few weeks later, the court revoked the
community placement and ordered the defendant to serve his four-year sentence in the Department
of Correction. From that order, the defendant appeals. Upon review, we affirm the judgments
below.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.

David Brady, District Public Defender; and John B. Nisbet, III, and Joe L. Finley, Jr., Assistant
District Public Defenders, Cookeville, Tennessee, for the Appellant, Jody Lee Turner.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
William E. Gibson, District Attorney General; and Kevin Poore, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                            OPINION

               On October 1, 2003, the defendant pleaded guilty to theft of property valued in excess
of $500, a Class E felony, and to theft of property valued in excess of $1,000, a Class D felony. See
generally Tenn. Code Ann. §§ 39-14-103, -105 (2003). As a Range I offender, he received a two-
year sentence for the Class E felony and a four-year sentence for the Class D felony. The trial court
imposed the sentences to run concurrently, yielding an effective sentence of four years. The trial
court ordered that the sentences be “suspended to [Department of Correction] probation supervised
by [community corrections].” Consequently, the court ordered the defendant to comply with the
requirements and conditions of the community corrections program, including requirements that he
obey all applicable laws, refrain from the use of drugs, and submit to drug screens.
                On November 7, 2003, the state filed a community corrections violation report and
alleged that the defendant had tested positively for the use of methamphetamine on October 30 and
that on November 4, 2003, he admitted to using methamphetamine and refused to submit to a drug
screen.

                On December 1, 2003, the trial court conducted a revocation hearing. The
defendant’s probation officer testified that the defendant entered the community corrections program
on October 1, 2003, and was given a drug field test on October 30, which revealed the consumption
of methamphetamine.1 The officer attempted to administer another test on November 4, but the
defendant “elected not to take the test [because] he would fail it for meth[amphetamine].” The
defendant signed a statement acknowledging that he had been using the drug, and the officer placed
the written statement into evidence. The officer testified that, he believed, the defendant told him
that he had used methamphetamine on November 3, 2003.

                The defendant testified at the revocation hearing that he had maintained employment
and had enrolled in “alcohol and drug assessment,” as required by the community corrections
program. He attended outpatient classes once a week for three weeks in October 2003. He admitted
that he was addicted to methamphetamine and had used it in October and as recently as two weeks
prior to the hearing. He testified that he needed a program more intensive than weekly classes. He
requested a more intensive program to treat his addiction; however, he admitted that, in January
2003, he declined to attend a rehabilitation program called “New Leaf.” He admitted on cross-
examination that, when first questioned by his probation officer, he untruthfully denied using
methamphetamine.

               The trial judge expressed concern that the defendant had rebuffed attempts to treat
his substance abuse problems in January 2003, following an arrest for driving under the influence.
The judge observed that the defendant had refused to “get serious” about his drug problem until after
he had been placed on probation and had been caught in violation of the rules. Based upon the use
of methamphetamine demonstrated by the drug screen and the defendant’s admission, the court on
December 1, 2003, ordered the revocation of the defendant’s community corrections placement and
ordered his confinement in the Department of Correction to serve the balance of his original
sentence.

                On January 6, 2004, the defendant filed a notice of appeal. On appeal, the defendant
argues that the order of incarceration was too harsh and that, instead of confining the defendant, the
trial court should have extended his probation for two additional years. The state responds that the
trial court acted within its discretion in ordering confinement as a means of serving the original
sentence. We agree with the state.




         1
           The officer testified that he sent the test sample to the “lab” and learned of the results later when he received
the lab report.

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                Before we explain our reasoning, we must address the defendant’s untimely notice
of appeal. See Tenn. R. App. P. 3(b), 4(a). We note that, in criminal cases, the notice of appeal is
not jurisdictional, and this court may waive the untimely filing of a notice of appeal in the interests
of justice. Tenn. R. App. P. 4(a). Although the defendant has not asked this court to take this action,
the state has not moved for a dismissal of the appeal. At any rate, we conclude that justice is best
served by excusing the filing of a timely notice. We, therefore, proceed to the merits of the appeal.

                 The standard of review upon appeal of an order revoking probation is the abuse of
discretion standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order for an abuse of
discretion to occur, the reviewing court must find that the record contains no substantial evidence
to support the conclusion of the trial judge that a violation of the terms of probation has occurred.
Id.; State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980); see State v. Michael Emler, No.
01C01-9512-CC-00424, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 27, 1996) (where the
defendant admits violation of the terms of probation, revocation by the trial court is not arbitrary or
capricious); see also State v. Mitzi Ann Boyd, No. 03C01-9508-CC-00246, slip op. at 3 (Tenn. Crim.
App., Knoxville, Nov. 1, 1996). The trial court is required only to find that the violation of
probation occurred by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(e) (2003).
Upon finding a violation, the trial court is vested with the statutory authority to “revoke the probation
and suspension of sentence and cause the defendant to commence the execution of the judgment as
originally entered.” Id. Furthermore, when probation is revoked, “the original judgment so rendered
by the trial judge shall be in full force and effect from the date of the revocation of such suspension.”
Id. § 40-35-310 (2003). The trial judge retains the discretionary authority to order the defendant to
serve the original sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

                 In the present case, the defendant was placed on probation with his sentence
suspended pending his compliance with community corrections supervision. He admitted his
violation of the terms of his probation and makes no claim on appeal that the trial court erred in
revoking probation. Although he urges us to conclude that serving the four-year sentence in
confinement is too harsh, we find no basis for concluding that the trial court abused its discretion in
ordering confinement. The defendant was apparently addicted to methamphetamine and may have
benefitted from an intensive rehabilitation program; however, the trial court was troubled by the
defendant’s rebuffing attempts in January 2003 to get him into a substance abuse program. The trial
court found that the theft offenses which are the bases for the current sentences were related to the
defendant’s involvement with methamphetamine, and the court expressed concerns for the safety of
the public should the defendant remain in the community. The record supports the trial judge’s
reasoning, and we cannot help but observe that the defendant continued his use of meth-
amphetamine, not only after submitting his guilty plea and accepting the terms of probation, but even
after the violation warrant had been filed. Given the record before us and the trial court’s findings
of fact, we discern no abuse of discretion in ordering the four-year sentence served in the Department
of Correction.

                Accordingly, the judgment of the trial court is affirmed.



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      ___________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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