No More Probation or Alternative Sentencing Where Defendant Doesn’t Shape Up

November 27, 2013

Corey Austin appealed the trial court’s revocation of his probation and reinstatement of his eight-year sentence in the Department of Correction.

Austin pled guilty in January 2011 to initiation of process to manufacture methamphetamine, a Class B felony, and was sentenced as a Range I, standard offender to eight years, suspended to probation after service of 120 days.  Subsequently, a probation violation report was filed in October 2012 because Austin failed to submit to a drug screen. Austin’s probation officer also noted in the report that he had been arrested for DUI in December 2011 and that he had “miss[ed] meetings with probation almost on a monthly basis and had to be reminded with letters and phone calls about his appointments. There was suspicion by this officer that the [defendant] was again using meth and when he was asked to submit to a drug screen, the [defendant] left the premises and could not be found.”

Austin admitted he had violated the terms of his probation at the February 2013 revocation hearing.  He requested to be placed in a rehabilitative facility.  However, at the end of the hearing, the trial court revoked Austin’s probation and ordered his eight-year sentence to go into effect.

Austin argued that the trial court abused its discretion by revoking his probation.  He provided proof of a job opportunity and was willing to enter a rehabilitation program as evidence of his turning around.  But Judge Alan E. Glenn of the Criminal Court of Appeals wrote that this proof was not enough.  The State argued that there was substantial evidence to support revocation of the defendant’s probation, and Judge Glenn agreed.

The appellate judge wrote that 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.”  The revocation of probation, he explained, was within the sound discretion of the trial court. 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,” he wrote, citing earlier precedent.  Other authoritative case law held that “[t]he 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.”

In ordering Austin’s sentence into effect, the trial court found that he had violated his probation by failing to provide a drug screen and that he had been “uncooperative and unresponsive to supervision.”  And again, Austin did admit that he violated the terms of his probation.  As such Judge Glenn stated that the Criminal Court of Appeals could not conclude that the trial court abused its discretion in ordering Austin’s entire sentence to be put into effect, as that was within the court’s authority.  Indeed, Judge Glenn quoted an earlier case from the appellate court, “an accused, already on probation, is not entitled to a second grant of probation or another form of alternative sentencing.”

Based upon the precedential authorities and this reasoning, the Criminal Court of Appeals affirmed the judgment of the trial court revoking the defendant’s probation and ordering him to serve his original sentence in confinement.

State v. Austin, Slip Copy, 2013 WL 6164448 (Tenn.Crim.App. Nov. 20, 2013)


Questions about sentencing or other matters in a criminal case?

Kevin Patterson has been providing professional legal services to individuals and businesses in the greater Memphis area since 1983.  When you ask Kevin to assist you with your legal issue, he will treat your case with the dedicated service and attention it deserves. Call Kevin at 901.300.4820 or e-mail at to discuss your legal matter. We look forward to hearing from you.


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