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State v. Kilgore

Court of Criminal Appeals of Tennessee, Nashville

December 20, 2019

STATE OF TENNESSEE
v.
ROBBIE JOE KILGORE

          Assigned on Briefs November 14, 2019

          Appeal from the Circuit Court for Warren County No. 18-CR-1764 Larry B. Stanley, Jr., Judge.

         The defendant, Robbie Joe Kilgore, appeals the order of the trial court revoking his probation and ordering him to serve his original three-year sentence in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding the defendant violated the terms of his probation, and the imposed sentence is proper. Accordingly, the judgment of the trial court is affirmed.

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

          John P. M. Partin, District Public Defender; Ricky L. Stacy, Assistant Public Defender, for the appellant, Robbie Joe Kilgore.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Assistant Attorney General; Lisa S. Zavogiannis, District Attorney General; and Thomas Miner, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE.

         Facts and Procedural History

         On June 27, 2018, the defendant, Robbie Joe Kilgore, pleaded guilty to theft of property over $2, 500 and received a three-year sentence with the Tennessee Department of Correction, suspended to supervised probation. The terms of probation required, in part, the defendant to report any changes in residence to his probation officer, to not use or possess any illegal drugs, and to follow all instructions given by his probation officer.

          On July 16, 2018, the defendant tested positive for amphetamine, methamphetamine, and marijuana. Additionally, the defendant failed to inform his probation officer before changing his residence, failed to report for his risk assessment as instructed by his probation officer, and failed to report to his forensic social worker as instructed by his probation officer. A probation violation warrant was issued on August 8, 2018, and a revocation hearing was held on January 9, 2019.

         At the revocation hearing, no evidence was presented, and the defendant stipulated to the fact that he violated the terms of his probation. The defendant requested a sentence of ninety days confinement followed by supervised probation. The State did not make a sentencing recommendation but stated, although this was the defendant's first violation in this case, his criminal history revealed he had five previous probation violations. At the conclusion of the hearing, the trial court revoked the defendant's probation and ordered him to serve the original three-year sentence in the Tennessee Department of Correction. This timely appeal followed.

         Analysis

         On appeal, the defendant argues the trial court erred in ordering him to serve the original sentence in confinement. Because this was his first violation in this case, the defendant contends the trial court abused its discretion in "fully revoking his probation." The State contends the trial court properly exercised its discretion in revoking the defendant's probation and ordering him to serve ...


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