         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 4, 2005

                 STATE OF TENNESSEE v. DARRELL PHILLIPS

                  Direct Appeal from the Criminal Court for Shelby County
                    Nos. 00-02766, 00-02767   John P. Colton, Jr., Judge



                  No. W2005-00154-CCA-R3-CD - Filed December 16, 2005


The defendant, Darrell Phillips, appeals the revocation of his probation, arguing that the court had
no authority to revoke his suspended sentences because the State did not seek this action until after
the sentences had expired. We disagree and affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L.
SMITH , JJ., joined.

Robert Jones, Shelby County Public Defender, and Phyllis Aluko, Assistant Public Defender, for the
appellant, Darrell Phillips.

Paul G. Summers, Attorney General and Reporter; Brian C. Johnson, Assistant Attorney General;
William L. Gibbons, District Attorney General; and James Lammey, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

                                       Procedural History

       On July 24, 2001, the defendant pled guilty in Case Number 00-02766 to theft of property
over $500 and in Case Number 00-02767 to theft of property over $1000, receiving consecutive
sentences of two and three years, respectively, for a total effective sentence of five years. The
judgments, executed on September 12, 2001, reflect that the defendant received pretrial jail credits
from December 22, 1999 to September 12, 2001, a total of 630 days, on both sentences.1 On January
22, 2002, the defendant was placed on probation for five years. On August 18, 2004, the State filed
a petition for revocation of probation based upon the defendant’s arrest on March 25, 2002, for
aggravated robbery. We will review the defendant’s claims.

                                                Revocation Hearing

        At the probation revocation hearing, Sandra McClain, a records clerk for the Shelby County
Criminal Court Clerk’s Office, testified that a petition to suspend the remainder of the defendant’s
theft sentence was granted on January 22, 2002. She said he was placed on probation for five years
and, subsequently, was arrested on March 23, 2002, for aggravated robbery, to which he later pled
guilty to robbery and received a six-year sentence.

        The defendant testified that he pled guilty to two counts of theft in July 2001 and received
a two- and three-year sentence “running wild” for a total sentence of five years. He said he later
hired a new attorney who filed a petition to suspend the remainder of his sentence, which was
granted, and he was placed on probation on January 22, 2002. Although the probation order recites
that he was placed on probation for five years from the date of the order, the defendant claimed that
was a mistake. He acknowledged, however, that he signed the order providing that he was on
probation until January 21, 2007. He testified that he believed he had “flattened” his three-year
sentence in January 2002 and had received 630 days jail credit for each sentence. Asked if he
understood that he could not get the same jail credit on two different sentences when they are
consecutive to each other, he testified that the State agreed to give him the same jail credits on both
sentences as part of the plea agreement.

       At the conclusion of the hearing, the trial court granted the State’s petition and revoked the
defendant’s probation. The defendant appeals this revocation.

                                                      ANALYSIS

                               Authority of Trial Court to Revoke Probation

         The defendant argues on appeal that the trial court did not have authority to revoke his
probation because his two- and three-year sentences had both expired by August 18, 2004, when the
State filed its petition for revocation. The State, believing the defendant’s sentences expired October
14, 2003, conceded in its brief on appeal that the trial court had no authority to revoke the



         1
            W e note that the judgments reflect that the defendant received the same pretrial jail credits on both sentences.
This court has explained “that a defendant incarcerated pretrial who then receives a consecutive sentence is allowed
pretrial jail credits to be applied only to the first sentence.” State v. Hobert Dean Davis, No. E2000-02879-CCA-R3-CD,
2002 W L 340597, at *3 (Tenn. Crim. App. M ar. 4, 2002) (citing State v. Frederick Cavitt, No. E1999-00304-CCA-R3-
CD, 2000 W L 964941 (Tenn. Crim. App. July 13, 2000)). Because his sentences are consecutive, the defendant was
allowed to have pretrial jail credits only on the first sentence, not both. This avoids “double-dipping” of credits.

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defendant’s probation. However, we conclude that the defendant was on probation until January 21,
2007. Accordingly, the trial court had authority to revoke his probation on December 16, 2004.

        Probation eligibility is governed by Tennessee Code Annotated section 40-35-303, which,
in pertinent part, provides:

               (c)(1) If the court determines that a period of probation is appropriate, the
       court shall sentence the defendant to a specific sentence but shall suspend the
       execution of all or part thereof and place the defendant on supervised or unsupervised
       probation either immediately or after a period of confinement for a period of time no
       less than the minimum sentence allowed under the classification and up to and
       including the statutory maximum time for the class of the conviction offense.

Tenn. Code Ann. § 40-35-303(c)(1) (Supp. 2005) (emphasis added). This section specifically allows
a trial court to impose a lengthier probation period for a defendant than the actual imposed sentence,
as the Sentencing Commission Comments explain:

               Subsection (c) provides that the judge must fix a specific sentence even where
       probation is granted. The judge must then fix the duration of the period of probation.
       There is no requirement that the duration of probation be the same as the length of
       the sentence imposed. However, the duration of the probation must be at least the
       length of the statutory minimum sentence. Further, even though the length of the
       actual sentence is restricted to that required by the particular range, the judge may fix
       the length of probation up to the statutory maximum for the class of the offense. For
       example, the judge could find that the defendant, convicted of a Class D felony, is
       a Range I, standard offender and impose a sentence of two years, which could be
       suspended for a period of time up to 12 years, because the statutory maximum for a
       Class D felony is 12 years. However, the probation period could not be less than two
       years. The commission believes that courts should have a great degree of latitude in
       fixing the length of probation since this might encourage the use of probation as a
       sentencing alternative.

Tenn. Code Ann. § 40-35-303, Sentencing Commission Cmts.; see also State v. Phyllis E. Hathaway,
No. E2004-00223-CCA-R3-PC, 2005 WL 467159, at *8 (Tenn. Crim. App. Feb. 28, 2005)
(explaining that the defendant’s total eighteen-year sentence for six consecutive Class D convictions
could be suspended for sixty years on probation under section 40-35-303 because the statutory
maximum period for Class D felonies at the time of the defendant’s crimes was ten years).

       Probation revocation is governed by Tennessee Code Annotated section 40-35-310, which
provides in pertinent part:

             The trial judge shall possess the power, at any time within the maximum time
       which was directed and ordered by the court for such suspension, after proceeding


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         as provided in § 40-35-311, to revoke and annul such suspension, and in such cases
         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, and shall be executed
         accordingly[.]

Tenn. Code Ann. § 40-35-310 (2003). However, a “trial court has no authority to revoke probation
after the sentence has elapsed.” State v. Watkins, 972 S.W.2d 703, 704 (Tenn. Crim. App. 1998).

        In the present appeal, the defendant received consecutive sentences of two years for Case
Number 00-02766 (theft of property over $500, a Class E felony) and three years for Case Number
00-02767 (theft of property over $1000, a Class D felony). The statutory maximums for convictions
of these classes are six years and twelve years respectively. See Tenn. Code Ann. § 40-35-112(c)(4)-
(5) (2003). Thus, the trial court had authority to place the defendant on supervised probation for up
to eighteen years, doing so instead for five years, albeit four months and ten days after the
defendant’s judgments were executed.

        The defendant argues that “the record suggests that the two sentences that were ostensibly
‘suspended’ in the current case had actually expired prior to the revocation of the defendant’s
probation. In fact, the expiration may have occurred prior to the defendant being placed on probation
on January 22, 2002.” The defendant offers no evidence that his sentences were in fact expired by
the time he was placed on probation. At the revocation hearing, the defendant claimed that his three-
year sentence expired in January 2002 with pretrial credits and the work credits he had earned at the
Shelby County Correctional Center. However, there is nothing in the record showing that this was
the case.2 Accordingly, the defendant has failed to show that his three-year sentence had expired by
January 22, 2002, when he was placed on probation. It is the defendant's duty to prepare a fair,
accurate, and complete record on appeal to enable meaningful appellate review. Tenn. R. App. P.
24(b). When necessary parts of the record are not included on appeal, we must presume that the trial
court's ruling was correct. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991). We
conclude that the defendant was placed on probation for both Case Numbers 00-02766 and 00-02767
until January 21, 2007, and the trial court had authority to revoke this probation on December 16,
2004.

                                           Revocation of Probation

         For his second issue, the defendant has repackaged his first argument, now arguing that the
trial court abused its discretion in revoking his probation because the record “contains no substantial
evidence that [he] had not completed his sentence on indictments, 00-02766 and 00-02767, prior to
the [S]tate filing their petition to revoke the defendant’s suspended sentence.”


         2
          The record does not reflect how the defendant’s sentences were structured. Because he claimed during the
revocation hearing that he flattened his three-year sentence in January 2002, he apparently believed that he served the
three-year sentence before starting his two-year sentence. For ease of writing this opinion, we will accept this
assumption.

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        A trial court is granted broad authority to revoke a suspended sentence and to reinstate the
original sentence if it finds by the preponderance of the evidence that the defendant has violated the
terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§ 40-35-310, -311
(2003). The revocation of probation lies within the sound discretion of the trial court. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim.
App. 1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse
of discretion in a probation revocation case, "a defendant must demonstrate 'that the record contains
no substantial evidence to support the conclusion of the trial judge that a violation of the conditions
of probation has occurred.'" State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting State
v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). The proof of a probation violation need
not be established beyond a reasonable doubt, but it is sufficient if it allows the trial court to make
a conscientious and intelligent judgment. Harkins, 811 S.W.2d at 82 (citing State v. Milton, 673
S.W.2d 555, 557 (Tenn. Crim. App. 1984)). We review this issue, therefore, for an abuse of
discretion.

       The proof at the revocation hearing showed the defendant was placed on probation until
January 21, 2007. As we stated earlier, the record on appeal is devoid of any evidence that these
sentences were in fact expired prior to the State’s filing its petition to revoke the defendant’s
sentence. In addition, the defendant acknowledged at the revocation hearing that he was arrested and
received a new six-year sentence for robbery while on probation in Case Numbers 00-02766 and 00-
02767, which was the basis for the State’s petition that the trial court found “well taken.” As such,
we cannot say the trial court abused its discretion when it revoked the defendant’s probation.
Accordingly, find this argument to be without merit.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the revocation of the defendant’s
probation.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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