            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT KNOXVILLE            FILED
                              AUGUST 1997 SESSION
                                                         September 30, 1997

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,              *       C.C.A. # 03C01-9611-CR-00414
                                 *
                 Appellee,       *       McMINN COUNTY
VS.                              *
                                 *       Hon. R. Steven Bebb, Judge
WAYNE MCDONALD,                  *
                                 *       (Probation Revocation)
                 Appellant.      *
                                 *




For Appellant:                           For Appellee:

Charles Corn                             Charles W. Burson
District Public Defender                 Attorney General & Reporter
10th Judicial District
P.O. Box 1453                            Timothy F. Behan
Cleveland, TN 37364-1453                 Assistant Attorney General
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         Jerry Estes
                                         District Attorney General
                                         10th Judicial District
                                         Washington Avenue
                                         Athens, TN 37303



OPINION FILED:




AFFIRMED



GARY R. WADE, JUDGE
                                           OPINION

               On August 10, 1984, the defendant, Wayne McDonald, was convicted

of embezzlement and larceny and sentenced to two consecutive five-year terms.1

The trial court granted the defendant full probation through August 10, 1994. On

February 12, 1993, after one or more probation violations, the defendant's probation

was extended three years, presumably through August 10, 1997. On July 8, 1996,

the trial court revoked probation when the defendant was convicted of forgery and

failed to pay restitution as required by the prior order. The trial court ordered both

five-year consecutive sentences, a total of ten years, to be executed.



               In this appeal of right, the defendant claims that the trial court erred by

revoking probation. We affirm.



               At the revocation hearing, it was conceded that the defendant had

failed to pay restitution and had a new conviction for forgery. Nonetheless, the

defendant argued that he should not be sentenced to incarceration because he was

the sole caretaker of his ill, elderly mother. The defendant testified about the

severity and duration of his mother's illness and claimed that he was forced to

commit forgery in order to pay for his mother's medical care. The defendant claimed

that his own son had stolen $2,800 from him.



               Lebron Smith, the defendant's probation officer, testified that he spoke

with an elderly-sounding woman over the telephone who identified herself as the

defendant's mother. He testified that she claimed to be in poor health and needed

her son for support.


       1
        The range of punishment for grand larceny was three to ten years. Tenn. Code Ann. § 39-3-
1104 (1982 repl.). The range was the same for embezzlement. Tenn. Code Ann. § 39-3-1121 (1982
repl.).

                                                2
              The trial court found that the defendant had no hesitation about

violating the law, failed to inform his probation officer of his forgery conviction, and

had failed to comply with the terms of his probation. The trial court noted that three

years before, the defendant had a probation revocation hearing based on the failure

to pay $500 per month restitution; afterward, the amount of restitution was reduced

to $333 per month, an amount the defendant agreed he could afford to pay. The

defendant failed to pay restitution under the revised pay schedule.



              When a probation revocation is challenged, the appellate courts have

a limited scope of review. If the trial judge finds by a preponderance of the evidence

"that the defendant has violated the conditions of his probation," probation may be

revoked. Tenn. Code Ann. § 40-35-311(d). This decision to revoke a suspended

sentence rests in the sound discretion of the trial court. The Sentencing

Commission Comments to Section 40-35-310 provide that "[u]pon revocation, the

original sentence imposed can be placed into effect." The determination by the trial

court, if conscientiously made, is entitled to an affirmance; the record must merely

demonstrate that there is substantial evidence to support its conclusions. State v.

Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980); see also State v. Williamson,

619 S.W.2d 145, 147 (Tenn. Crim. App. 1981).



              On appeal, the findings of the trial court are entitled to the weight of a

jury verdict, and the defendant has the burden to demonstrate that the record

contains no substantial evidence to support the finding of the trial court that a

violation of the conditions of probation has occurred. State v. Wall, 909 S.W.2d 8,

9-10 (Tenn. Crim. App. 1994); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

Upon a violation of probation, "the trial judge shall have the right by order duly

entered upon the minutes of [the] court, to revoke the probation and suspension of


                                            3
sentence and cause the defendant to commence the execution of the judgment as

originally entered, or otherwise in accordance with § 40-35-310 ...." Tenn. Code

Ann. § 40-35-311(d).



                 In our view, the trial court did not abuse its discretion. There was

clearly sufficient evidence to support the trial court's determination that the terms of

probation had been violated.



                 There are two issues, however, which were not raised by either party.

First, the defendant was sentenced to two, five-year sentences. They were ordered

to be consecutive. At first glance, it would appear that one of the sentences had

expired by the time the trial court revoked probation. At our request, the record on

appeal was supplemented with copies of the judgment forms. These documents

confirm that the these sentences were to "be served consecutive with ... Texas

District Court No. 180." Without knowing when the Texas sentence expired, we

cannot determine whether either of the defendant's five-year sentences had expired

before the revocation of probation.2 If the defendant had served his entire

probationary term on one of the convictions, the trial judge would have been without

authority to order service of the expired sentence; Tenn. Code Ann. § 40-35-310

provides authority to revoke only during the "time which was directed and ordered by

the court for such suspension." See also Rowell v. Dutton, 688 S.W.2d 474, 477

(Tenn. Crim. App. 1985) (holding that habeas corpus relief was appropriate where

the Governor had "exercise[d] his revocation authority over a commutee after the

expiration of his sentence.") Yet this record does not provide us with the



        2
          "The courts may take judicial notice of the court records in an earlier proceeding of the same
cas e an d the action s of th e co urts th ereo n." De lbridge v. State , 742 S.W .2d 266, 267 (T enn . 1987).
In addition, appellate courts are authorized to supplement incomplete records. Tenn. R. App. P.
24(e). It is inappropriate, however, for our court to do the factual investigation necessary to determine
the term s of th e T exa s jud gm ent.

                                                      4
information necessary to make an assessment on that issue.



              A second observation relates to the February 12, 1993, extension of

the defendant's probation for a period of three years. That extension exceeded the

authority vested in the trial court "at the conclusion of a probation revocation

hearing, the court shall have the authority to extend the defendant's period of

probation supervision for any period not in excess of two (2) years." Tenn. Code

Ann. § 40-35-308 (c) (emphasis added). Because, however, the defendant's

probation violations occurred prior to the July 8, 1996, revocation hearing, within the

two years authorized by statute, the trial court acted in compliance with the law.



              Accordingly, the judgment of the trial court is affirmed.



                                          _________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
Paul G. Summers, Judge



_____________________________
William M. Barker, Judge




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