IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FILED DECEMBER 1997 SESSION January 21, 1998 Cecil W. Crowson Appellate Court Clerk ) STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9703-CC-00096 Appellee, ) ) Rutherford County V. ) ) Honorable J. S. Daniel, Judge ) LINCOLN C. FRENCHELL, ) (Sentencing) ) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE: Gerald L. Melton John Knox Walkup District Public Defender Attorney General & Reporter Jeffrey S. Burton Sarah M. Branch Assistant Public Defender Counsel for the State West Main Street 450 James Robertson Parkway Suite 101, Court Square Bldg. Nashville, TN 37243-0493 Murfreesboro, TN 37130 William C. Whitesell District Attorney General Paul A. Holcombe, III Assistant District Attorney General Rutherford County Judicial Building Murfreesboro, TN 37130

OPINION FILED: ___________________

AFFIRMED PAUL G. SUMMERS, Judge OPINION

The appellant, Lincoln C. Frenchell, pled guilty to theft of property valued over $1000 and received a sentence of two years supervised probation with diversion. However, approximately one month later, the district attorney’s office filed a motion to terminate the appellant’s diversion because he had misrepresented to the court his lack of a prior criminal record. The appellant has a felony record in New York. Also, while on probation, the appellant violated the conditions of his probation. After a revocation/sentencing hearing, the trial court revoked the appellant’s probation and sentenced him to two years in prison. He now appeals that judgment.

The appellant violated the conditions of his diversionary probation: rule (4), failure to provide verification of employment; rule (5), failure to inform probation officer that he had moved from his local address and failure to receive permission before leaving the state; rule (6), failure to report; rule (8), failure to pay probation fees; and rule (10), failure to pay court costs. Despite these violations, the appellant contends that the trial court erred in denying him probation.

Whether viewed as a sentencing hearing or a revocation proceeding, the appellant has not overcome the presumption of correctness of the court’s ruling.

The trial court did not abuse its discretion by revoking the appellant’s probation and sentencing him to two years in prison. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Also, “[u]pon revocation, the original sentence imposed can be placed into effect.” Tenn. Code Ann. § 40-35-310 (1990) Sentencing Commission Comments. Finding no error in the trial court’s ruling, we affirm the judgment pursuant to Rule 20, Tenn. Ct. Crim. R. App.

______________________________ PAUL G. SUMMERS, Judge

-2- CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ WILLIAM M. BARKER, Judge

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