Court of Criminal Appeals of Tennessee, Knoxville
from the Criminal Court for Hamilton County No. 298289 Thomas
C. Greenholtz, Judge.
Defendant, Franklin James Howe, appeals the Hamilton County
Criminal 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 trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed Pursuant to Rule 20, Rules of the Court of
Kristen D. Williams, Chattanooga, Tennessee, for the
appellant, Franklin James Howe.
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Counsel; Neal Pinkston, District Attorney
General; and Ancharlene Davis, Assistant District Attorney
General, for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which Norma McGee Ogle and D. Kelly Thomas, Jr., JJ.,
H. MONTGOMERY, JR., JUDGE.
April 20, 2016, a Hamilton County grand jury charged the
Defendant with one count of aggravated burglary and one count
of theft of property valued at $500 or less. On December 9,
2016, the Defendant pleaded guilty to one count of aggravated
criminal trespass and one count of theft of property valued
at $500 or less. Pursuant to the plea agreement, the trial
court imposed consecutive sentences of eleven months and
twenty-nine days to be served on probation through the mental
health court program. On January 9, 2017, a probation
violation report was filed alleging that the Defendant failed
to report to probation within seventy-two hours of his
release. On February 9, 2017, an addendum to the violation
report was filed alleging that the Defendant failed to report
to orientation and failed a drug screen by testing positive
for marijuana use. On February 22, 2017, the trial court
terminated the Defendant's participation in the mental
health court program. On May 19, 2017, the trial court
partially revoked the Defendant's probation and
reinstated him to probation effective May 31, 2017. On June
6, 2017, a probation violation report was filed alleging that
the Defendant failed to report to probation within
seventy-two hours of his May 31 release. On August 18, 2017,
the trial court revoked the Defendant's probation and
ordered him to confinement for the service of the balance of
his sentence. 
appeal, the Defendant contends that the trial court abused
its discretion by not reinstating him to probation because
the Defendant did not reoffend and was not hiding. The State
argues that the trial court properly ordered execution of the
sentence as originally imposed based upon the Defendant's
repeated refusal to report to probation or otherwise comply
with the conditions of release.
August 14, 2018 hearing, the Defendant conceded that he
failed to report to probation within the time required by the
conditions of his release. He explained that once he missed
his first report date, he did not report because "I had
already missed. And I was like, well, they're just going
to lock me up if I go in. So I was like, you know, screw
it." The Defendant stated that he experienced difficulty
receiving or taking his prescribed medication, which also
interfered with his ability to comply with the conditions of
probation. He assured the trial court, however, that he had
changed his attitude and would "make sure that I
reported this afternoon" if reinstated on probation. The
court ruled that by absconding the Defendant had violated
"the perhaps number one obligation of supervised
probation." The court found that the Defendant had
willfully refused to report and ordered the sentences to be
served in confinement.
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." T.C.A. § 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, extend the period of probation by no more than two
years, 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, 387 S.W.2d 811, 814 (Tenn. 1965)).
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. §§ 40-35-310. The Defendant is not
entitled to relief.
we affirm the judgment of the trial court pursuant to