         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs January 25, 2005

                 STATE OF TENNESSEE v. RANDY L. JOHNSON

                 Direct Appeal from the Criminal Court for Sullivan County
                 Nos. S44,297; S44,506; S44,507   Phyllis H. Miller, Judge



                     No. E2004-01124-CCA-R3-CD - Filed March 15, 2005


The appellant, Randy L. Johnson, pled guilty in the Sullivan County Criminal Court to two counts
of aggravated assault and one count of theft of property valued over $1,000. He received a total
effective sentence of nine years incarceration in the Tennessee Department of Correction. The trial
court granted the appellant probation. Subsequently, his probation was revoked because of new
offenses and a positive drug screen. The trial court ordered the petitioner to serve his sentences in
confinement. On appeal, the appellant challenges the revocation of his probation. Upon review of
the record and the parties’ briefs, we affirm the judgments of the trial court.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT , JR., J., joined.

Richard A. Tate, Blountville, Tennessee, for the appellant, Randy L. Johnson.

Paul G. Summers, Attorney General and Reporter; William G. Lamberth, II, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Robert H. Montgomery, Jr., Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

        On March 29, 2001, the appellant pled guilty to two counts of aggravated assault and one
count of theft of property valued over $1,000. The trial court imposed a sentence of three years for
one of the aggravated assault convictions, two years for the theft conviction, and four years for the
remaining aggravated assault conviction. The trial court ordered that the two- and three-year
sentences be served concurrently to each other but consecutively to the four-year sentence, for a total
effective sentence of seven years. The trial court also allowed the appellant to serve his sentences
on community corrections.
         Thereafter, on January 3, 2002, the appellant’s alternative sentence was revoked. The trial
court allowed the appellant to serve his sentence on probation, but increased his four-year sentence
to a six-year sentence, for a total effective sentence of nine years. Subsequently, Kathy Moody, the
appellant’s probation officer, filed two arrest warrants for the violation of the appellant’s probation,
alleging that during drug screening, the appellant tested positive for marijuana, he failed to follow
the laws of Tennessee by committing the offenses of forgery over $1,000 and theft over $1,000, he
failed to report, and he failed to pay monthly supervision fees.

        At the probation revocation hearing, Moody testified that the appellant tested positive for
marijuana on August 13, 2002. She informed the appellant that she would take out an arrest warrant
due to the violation of his probation. Because of the positive drug screen, the appellant voluntarily
entered into an inpatient treatment program, from which program he was released on September 11,
2002. The appellant’s last meeting with his probation officer was August 2002; he did not report
again through February 5, 2004. The appellant also failed to pay any supervision fees between
August 2002 and February 2004.

        Michael Roberts testified at the revocation hearing that in September or October 2003, the
appellant would occasionally spend the night with him. Thereafter, someone approached Roberts
with a check that had been returned for insufficient funds. Roberts did not write the check, nor did
he give the appellant permission to sign the check.

       Detective Mark Mason testified that on January 1, 2004, he met with the appellant regarding
the checks stolen from Roberts. The appellant gave a statement confessing to the theft of three of
Roberts’ checks. One of the checks was written for $700 and the other for $1,400. The appellant
used one of the checks to purchase a van which he later sold for $600. The appellant admitted that
Roberts did not give him permission to sign the checks.

       At the conclusion of the hearing, the trial court stated:

               I find that you have violated probation [on your cases]. I find the
               State has proved the case, I guess way beyond a preponderance of the
               evidence, by clear and convincing evidence they’ve proved it and that
               you violated all the conditions alleged. The positive drug screen,
               violation of Rule No. 7 [the positive drug screen], Rule No. 6 [failure
               to report], Rule No. 8 [failure to pay fees] and Rule No. 1 [failure to
               obey all laws].

                      Now, I’m going to revoke your probation and order you to
               serve your sentence. It’s one thing to have a positive drug screen. Of
               course that will get you revoked too, but it’s another to go out and
               commit actually two Class D felonies.




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The trial court ordered the appellant to serve his nine-year sentence in confinement. The appellant
appeals the revocation of probation and the imposition of a sentence of confinement.

                                             II. Analysis

        Upon finding by a preponderance of the evidence that the appellant has violated the terms
of his probation, a trial court is authorized to order an appellant to serve the balance of his original
sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e) (2003); State v. Harkins,
811 S.W.2d 79, 82 (Tenn. 1991). In the alternative, “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) (2003); see also
State v. Hunter, 1 S.W.3d 643, 646 (Tenn. 1999). Moreover, “an accused, already on probation, is
not entitled to a second grant of probation or another form of alternative sentencing.” State v. Jeffrey
A. Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. at Nashville,
Feb. 10, 1999); see also State v. Timothy A. Johnson, No. M2001-01362- CCA-R3-CD, 2002 WL
242351, at *2 (Tenn. Crim. App. at Nashville, Feb. 11, 2002). Probation revocation rests in the
sound discretion of the trial court and will not be overturned by this court absent an abuse of that
discretion. See State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). An abuse of
discretion exists when “the record contains no substantial evidence to support the trial court’s
conclusion that a violation has occurred.” State v. Conner, 919 S.W.2d 48, 50 (Tenn. Crim. App.
1995).

       In the instant case, the proof overwhelmingly demonstrated that the appellant violated the
terms of his probation. On appeal, the appellant does not contest his violation; he merely argues that

               the ends of justice and the interest of the public and the appellant are
               not best served by having the appellant to serve his sentence.
               Considering the nature of the violation of probation, the best interest
               of the public and the appellant is for the appellant to be placed back
               on probation, so that he can become a productive member of society.

We disagree. Given the appellant’s repeated and egregious violations of his probation, we conclude
that the trial court was well within its discretion in ordering the appellant to serve his sentence in
confinement. This issue is without merit.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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