Court of Criminal Appeals of Tennessee, Knoxville
from the Circuit Court for Blount County Nos. C18896-98 Tammy
M. Harrington, Judge
Defendant, Roy D. Moore, through counsel, appeals as of right
from the Blount County Circuit Court's order revoking his
probation and ordering him to serve his sentence in
confinement. The State has filed a motion to affirm the trial
court's order pursuant to Tennessee Court of Criminal
Appeals Rule 20. Following our review, we conclude that the
State's motion is well-taken and affirm the order of the
R. App. P. 3; Judgment of the Circuit Court Affirmed Pursuant
to Rule 20, Rules of the Court of Criminal Appeals.
Liddell Kirk, Knoxville, Tennessee, for the Appellant, Roy D.
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Counsel, for the Appellee, State of
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE.
19, 2010, the Defendant pleaded guilty to two counts of
aggravated assault and was sentenced to five years to be
served on probation. Following one probation violation in
April 2014, the trial court extended the Defendant's
probationary term for one additional year. In July 2015, a
violation of probation warrant issued based upon the
Defendant's arrest for domestic assault, failing a drug
screen, and use of alcohol. Following a hearing wherein the
Defendant admitted to the conduct to establish the
violations, the court revoked the Defendant's probation
and ordered the Defendant to serve the balance of his
sentence in confinement. The Defendant filed a timely notice
of appeal from the court's revocation order.
appeal, the Defendant acknowledges that he committed the
violations but argues that "[p]erhaps it was an abuse of
discretion to order confinement for the balance of the
sentence without first offering substance abuse
treatment." The State argues that this court should
affirm the trial court's judgment by memorandum opinion
because the court did not abuse its discretion by revoking
the Defendant's probation. The Defendant did not file a
response to the State's motion for affirmance.
supreme court has concluded that a trial court's decision
to revoke a defendant's probation "will not be
disturbed on appeal unless . . . there has been an abuse of
discretion." State v. Harkins, 811 S.W.2d 79,
82 (Tenn. 1991) (citing State v. Williamson, 619
S.W.2d 145, 146 (Tenn. Crim. App. 1981)). An abuse of
discretion has been established when 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. Delp, 614
S.W.2d 395, 398 (Tenn. Crim. App. 1980); see State v.
Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v.
Grear, 568 S.W.2d 285, 286 (Tenn. 1978). When a trial
court finds by a preponderance of the evidence that a
defendant has violated the conditions of probation, the court
"shall have the right . . . to revoke the
probation." Tenn. Code Ann. § 40-35-311(e)(1)
(2014). After revoking a defendant's probation, the trial
court may return a defendant to probation with modified
conditions as necessary, order a period of confinement, or
order the defendant's sentence into execution as
originally entered. Id. §§ 40-35-308(a),
(c), -310 (2014). "In probation revocation hearings, the
credibility of witnesses is for the determination of the
trial judge." Carver v. State, 570 S.W.2d 872,
875 (Tenn. Crim. App. 1978) (citing Bledsoe v.
State, 378 S.W.2d 811, 814 (Tenn. 1965)).
record reflects that the Defendant admitted that he had been
drinking alcohol and that he had a problem with cocaine. He
also admitted to pleading guilty to a new charge of domestic
assault in Knox County Criminal Court. He stated that the
victim of the domestic assault was his sister, with whom he
had been living. The Defendant's probation officer
testified that the Defendant had committed four violations
since being placed on probation: failing to notify the
officer of a change in residence, garnering and failing to
report a new arrest for domestic assault, testing positive
for cocaine use, and drinking alcohol.
conclude that the record supports the trial court's
finding that the Defendant violated the conditions of his
probation and that the court did not abuse its discretion by
revoking the Defendant's probation. See T.C.A.
§ 40-35-311(e)(1). Once the court revoked the
Defendant's probation, it had the authority to order the
Defendant to serve his sentence in confinement. See
id. §§ 40-35-308(a), (c), -310. The Defendant
is not ...