### FILED July 8, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MAY 1998 SESSION

STATE OF TENN ESSEE, ) ) Appellee, ) C.C.A. No. 03C01-9810-CC- 0 035 4 ) vs. ) Blount County ) JOHN L. STUPP, ) Hon. D. Kelly Thomas, Jr., Judge ) Appellant. ) (Probation Revocation)

FOR THE APPE LLANT: FOR THE APPELLEE: GREGORY D. SMITH (on appeal) JOHN KNOX WALKUP Attorney at Law Attorney General & Repor ter One Public Sq., Ste. 321 Clarksville, TN 37040 MARVIN S. BLAIR, JR. Asst. Attorney General NATALIE HURLEY (at hearing and 425 Fifth Ave. North

of counsel on appeal) 2d Floor, Cordell Hull Bldg. Assistant Dist. Public

Defender Nashville, TN 37243-0493 419 High St. Maryville, TN 37804 MICHAEL L. FLYNN District Attorney General TAMMY HA

RRINGTON Asst. District Attor

ney General 363 Court St. Maryville, TN 37804 OPINION FILED:________________ AFFIRMED -

RULE 20 JAMES CURWOOD

WITT, JR., JUDGEOPINION The def enda nt, John L. Stupp, appeals the revocation of his probationary sen ten ce. He was convic ted upon his guilty pl eas of Class D felony theft of proper

ty, Cl ass A mi sdemeano r theft of services, Class E felony possession of a Schedule VI drug for resal e, Class D felony burglary, an d Class A misdemeanor possession of drug paraphernalia. He agreed to a five-y ear effective sentence, and the trial co ur t imposed probation. Upon rel ease from the Blount County Jai l, the defendant was to live at t he Salva tion Army in Knox County until other arrangementscould be made by his probation officer. The day after his release, the defendant left the Salvation Army facili ty. Moreover, he fail ed to make contact with his probation officer

as he had been instructed to do. The defendant admitted as much at the sentencing hearing , although he claimed he had uns uccessfully attempted to contact his probation officer by telephone. On review, we find no error of law requiring

reversal and affirm the tri al court's revocati on pursuant to Rule 20 of the rules of this court.

The standard ofreview upon appeal of an order revoking probation is the abuse of discretion standard

. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). In order for an abus e of dis cretion to occur, the rev iewing court must find that the record contains no substantial evidence sufficient to support the conclusion of the trial judg e that the vi olation of the termsof probation has occurred. Harkins , 811 S.W.2d at 82; S tate v . Delp , 614 S.W.2d 395, 39 8 (Tenn. Crim. App. 1980). The trial court is required only to find that the violation of proba tion occu rred by a preponderance of the evidence. Tenn. Code Ann. § 40-35-311(d) (1997). Upon a finding of aviolation, the trial court is vested

with the statutory authority to "revoke probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally ent

ered." Tenn. Code Ann. § 40-35-311(d) (1997). Furtherm ore, wh en proba tion is revoked, " the or iginal judgment so rende red bythe trial judge shall be in full forc e and effect from the date of the revocation of3

such suspension." Tenn. Code Ann. § 40-35-310 (1997). The tri al judge retains the discretionary authority to order the d efendan t to se rve the original s entence. See State v. Duke , 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

In this case, the defendant admitted v iolation of the terms of probation. This alone is substantial evidence of record to supp ort the trial court's revocation order. See State v. Michael Emler , No. 01C01-9512-CC-00424, slip op. at 4 (Tenn. Crim. App., Nas hville, Nov. 27, 1996) (where the defendant admits violation of the terms of probation, revocation by the trial court is not arbitrary or capri cious); see also State v. Mi tzi Ann Boyd , No. 03C01-9508-CC00246, slip op. at 3 (Tenn. Cri m. App., Knoxville, N ov. 1, 1996). We cannot say the trial court abused its discretion in revoking probation for the defenda nt's failure, almost immediately upon his release from jail, to ab ide by the terms of his probationary sentence. Moreover, the facts of this case demon strate no abuse of discretion by the tri al court in ordering the defendant to serve the orig inal sentence.

Accordingly, w e affirm the judgment of the trial cour t pursuant to Rule 20, Rules of the Court of Criminal Appeals.4 _______________________________ JAMES CURWOOD WITT, JR., JUDGE CONCUR:

_____________________________ JOHN EVERETT WILLIAMS, JUDGE

_____________________________ ALAN E. GLENN, JUDGE