         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 9, 2005

             LARRY W. TIMBERLAKE v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                        No. 2002-A-566    Cheryl Blackburn, Judge



                  No. M2004-02734-CCA-R3-CD - Filed September 12, 2005


The defendant, Larry W. Timberlake, appeals his probation revocation and imposition of his original
seven-year sentence. After a thorough review of the record and applicable law, we affirm the
judgment of the trial court.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JERRY L. SMITH, JJ., joined.

Theodora A. Pappas, for the Appellant, Larry W. Timberlake.

Paul G. Summers, Attorney General & Reporter; Benjamin A. Ball, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant Attorney General, for the
Appellee, State of Tennessee.

                                             OPINION


                On March 26, 2002, the defendant pleaded guilty to robbery and attempted robbery
pursuant to a plea agreement with the state in which he agreed to serve and effective seven-year
sentence. The defendant agreed to and serve one year of his sentence, day for day, in local
confinement, and thereafter he was placed on supervised probation. After being released on
probation, the defendant reported to his probation officer approximately three times. When the
defendant failed to report again as scheduled, the probation officer filed a probation violation report
alleging that the defendant had failed to report, that his whereabouts and address were unknown, and
that he was in arrears on his probation fee payments.

                The defendant was located and later arrested after he gave a false name to the police.
The trial court conducted an evidentiary hearing in which the defendant and a representative from
the probation office testified. The defendant testified that he had failed to report because he began
using illegal drugs while on probation and therefore was afraid of failing a drug test and as a result
having his probation revoked. This same fear motivated the defendant to provide the police with a
false name when questioned. The defendant testified that he had not used drugs in the four to five
months prior to the probation revocation hearing and that he was concerned he may have contracted
the AIDS virus from a female friend who had been diagnosed with AIDS. The defendant stated that
he had employment and a place to live awaiting him if the court should “give him a second chance”
and allow him to serve some type of non-incarcerative sentence.

               On cross-examination, the state elicited from the defendant that he had four prior
felony convictions. Moreover, the defendant had been previously placed in the community
corrections program and had his placement revoked. The court revoked the defendant’s probation
and imposed his original seven-year incarcerative sentence.

                The defendant concedes that his admission supports the court’s conclusion that he
violated the terms of his probation. However, the defendant argues that the court abused its
discretion in revoking the his probation because the record established that he made efforts to
comply with certain terms of his probation by providing updated addresses to his probation officer,
making a payment of probation fees, reporting several times to his probation officer, and maintaining
employment. Moreover, the defendant argues that the court should have considered that his failure
to report was his first probation violation in this case and that he was battling a drug addiction during
the course of his probation. The state counters that the defendant’s admission at his hearing and
concession on appeal that he violated his probation are sufficient to support the court’s probation
revocation.

                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). 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. 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, substantial evidence supports the trial court’s conclusion that the
defendant violated the terms of his probation. The defendant admitted that he failed to report to his
probation officer, failed to advise his probation officer of his new address, and used illegal drugs
while on supervised probation, all of which were in contravention of his probation agreement. The
defendant’s assertions that he initially reported to his probation officer several times and filed several


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change of address forms do not excuse his ultimate failure to report or inform the probation office
of his whereabouts. We conclude that the record supports the trial court’s determination that the
defendant violated the terms of his probation. Having determined that the defendant violated
probation, the trial court retained the discretionary authority to reinstate the defendant’s original
sentence. See id. Moreover, the defendant was not entitled to a credit for any time spent on
probation unless the entire term was successfully completed. State v. Taylor, 992 S.W.3d 941
(Tenn. 1999). Accordingly, in the instant case, the trial court acted within its authority by requiring
the defendant to serve his originally-imposed seven-year sentence.

               Finding no error in the record, we affirm the judgment of the trial court.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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