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State v. Wilburn

Court of Criminal Appeals of Tennessee, Knoxville

June 3, 2019

STATE OF TENNESSEE
v.
GREGORY SCOTT WILBURN

          Assigned on Briefs February 26, 2019

          Appeal from the Circuit Court for Blount County No. C-18849 Tammy M. Harrington, Judge

         The Defendant, Gregory Scott Wilburn, appeals as of right from the Blount County Circuit Court's revocation of his probation. The Defendant contends that the trial court abused its discretion in ordering the remainder of his sentence to be served in confinement. Discerning no error, we affirm the judgment of the trial court.

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

          J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Raymond Mack Garner, District Public Defender (at revocation hearing), for the appellant, Gregory Scott Wilburn.

          Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Michael L. Flynn, District Attorney General; and Tyler Braden Parks, Assistant District Attorney General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and Norma McGee Ogle, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         In 2010, the Defendant pled guilty to a violation of the Motor Vehicle Habitual Offenders Act. See Tenn. Code Ann. § 55-10-616. The Defendant was sentenced as a Range III, persistent offender to six years' probation. The trial court ordered the Defendant's sentence to be served consecutively to his sentence for a prior conviction for failure to appear.

         On June 28, 2017, the trial court issued a violation warrant for the Defendant alleging that the Defendant had failed to report to his probation officer, had tested positive for amphetamine and methamphetamine, had failed to comply with his curfew, and had failed to make payments toward his court costs. On July 17, 2017, the trial court placed the Defendant on "medical furlough." The Defendant was subject to GPS monitoring and placed on house arrest "except for necessary medical treatment."

         On December 5, 2017, the trial court ordered that the Defendant's GPS monitor be removed so that he could seek medical treatment in Nashville. On April 27, 2018, the trial court issued an amended violation warrant for the Defendant alleging that the Defendant had failed to comply with the conditions of his medical furlough and classifying the Defendant as an absconder.

         At the revocation hearing, the Defendant's probation officer testified that the initial violation warrant was issued because the Defendant had "failed to report as directed during the entire month of May 2017." The Defendant had also "tested positive and signed a voluntary admission form admitting to the recent use of valium and methamphetamines."

         The Defendant then failed to report to his probation officer after his GPS monitor was removed in December 2017. When the Defendant's probation officer went to the Defendant's home "after a couple of months," he was "informed that [the Defendant] had not been there for a while." Prior to that, the Defendant had followed the rules of probation and his medical furlough, but "when the GPS came off [was] when [the Defendant] had the issues."

         The Defendant testified that he had "stage four liver disease" and that the trial court had granted him a medical furlough "for treatment." The Defendant admitted that after his GPS monitor was removed he did not return to his home. Instead, the Defendant stayed with a friend and then with his sister. The Defendant testified that he "didn't have really an excuse" for not reporting to his probation officer. The Defendant admitted that his probation had previously been ...


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