IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE JANUARY 2000 SESSION

STATE OF TENNESSEE, * C.C.A. # E1999-00388-CCA-R3-CD

Appellee, * BLOUNT COUNTY VS. * Hon. D. Kelly Thom as, Jr., Judge CHRISTOPHER GARZA, * (Revocation of Probation)

Appellant. *

For Appellant : For Appellee : Steve McEwen, Attorne y Paul G. Summers Grayson & Wright Attorney General and Repor ter 410 West Main Street Mountain City, TN 37683 Clinton J. Morgan (on appeal) Counsel for the State 425 Fifth Avenue North Mack Garner Nashville, TN 37243-0493 District Public Defender Shawn Graham Edward P. Bailey, Jr. Assistant District P ublic Defender Assistant District A ttorney General 419 High Street 942 E. Lamar Alexander Parkw ay Maryville, TN 37804 Maryville, TN 37804 (at hearing)

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE 

# FILED
February 23, 20

00 Cecil Crowson, Jr. Appellate Court Clerk2 OPINION The defendant, Christopher Garza , appeals the trial court's revocation of a sentence of probation. The singl e issue presented for revi ew is whether the trial court abused its di scretion in revoking the probation.
We find no error and affirm the judgment of the trial c ourt.
On January 17, 1997, the defendant ente red a guilty plea to statutory rape. Tenn. Code Ann. § 39-13-506. The trial court imp osed a Range II sentence of three years and required the defendant to serve one hund red fifty days in jail, after which he was plac ed on supervised probation.

On March 29, 1999, the state is sued a warrant containin g allegations that the defendant had violated the f ollowing probationary rules:

(1) to work at a lawful occupation and support his dependents, if any, to the best of his ability; (2) to pay all required fees to the supervision and criminal injuries fund unl ess waived by appr opriate authority; and (3) to pay $761.50 in court costs. The state specifically asserted that the defend ant had been unemployed since January of 1999, had not paid fees si nce April of 1998, and had not made any payments towards court costs.
Dena McCollough, a proba tion officer, testified that the defendant had been terminated from his employment du e to poor work habits and had paid nothing on his fees since March of 1998. S he acknowledged at the hear ing in July of 1999 that since the filing of the w arrant, the defendant had paid $50.00 in c ourt costs over a period of almost four months. Ms. McCollough stated that ov er a period of sixteen or seventeen months, the defendant had hel d 15 or 16 different jobs.

The defendant claimed that he had been employed with Collier Foods, which had several di

fferent businesses in Sevier County, and instead of changi ng3 jobs, he had merely wor ked at several of their v arious locations during

the term of his employment. While conceding that ther e had been a three-month period w hen he was unemployed, he explained that he had no transportation available in th ose months. The defendant stated that since the fil ing of the probation viol ation warrant, he had received a job w ith Dairy Mart and was being trained to become an assistant manager. He claimed that he had received his GED si nce being on probation and was planning to further his education at Pellissi ppi State where he woul d attend classes during the day

because of his night shift at w ork.

On the date of the revocation, he s ubmitted that he had $15.00 available to pay tow

ards an arrearage of $1,431.50 i n fees. The defendant complained that he needed all the money he could spare in order to pay an automobile loan, his rent, and the care for his grandmother, who resided with hi m. The defendant argues that other than his delinquency in pay

ing his probation fees and court costs, he has been a "model probationer," having pas sed all random drug screens and also having reported as directed to hi s probation officer.

The trial court concluded that the defendant had violated his pr obation by failing to pay at l east part of the fees and court costs,despite the ability to do so. The trial court also determi ned that the defendant had failed to maintain s teady employment and had been untruthful w ith his probation officer. At the conclusion of the hearing, the trial court imposed a sentence of 16 days in jail befo re reinstatement to probation. The or der allowed the defendant to ser ve two days per week over a period of ei ght consecutive weeks. The defendant was also order ed to pay $100.00 per month for court costs and $100.0 0 in fee arrearages.

The defendant insists that the proof did not establish that his failure to pay probationary fees and court costs was willful. He argues that the trial court failed to affirmatively find that the "alternatives to impr isonment were inadequate t o meet the state's interest . . . ."4 When a probation revocation is challeng ed, this court has a limit ed scope of review. If the tr ial judge finds by a pr

eponderance of the evidence "that the defendant has violated the conditi ons of probation," probation may be revoked. Tenn. Code Ann. § 40-35-311(d). The decision to revoke a susp ended sentence rests within the dis

cretion of the trial court.The Sentencing Commission Co mments to § 40-35-310 provide that "[u]pon revocation, the ori ginal sentence imposed can be placed into effect." The determination by the trial court, if conscientiously made, is entitled to an affirmance. The record must merely demonstrate that there is substantial evidence to s upport its conclusions. State v. Delp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980); see also State v. Williamson , 619 S.W.2d 145, 147 (Tenn. 1981). Upon appeal, the findings of the trial court are entitle d to the weight of a jury verdict. The judgment of rev ocation will be upheld u nless there is no substanti al evidence to support those findi ngs. State v. Wall , 909 S.W.2d 8 (Tenn. Crim. App. 1994); State v. Harkins , 811 S.W.2d 79, 82 (T enn. 1991).

In our view, the tr

ial court did not abuse its discretion. While the defendant made a compelling case that he had taken positive steps toward a successful rehabilitation, there were periods dur ing which he was

unemployed and times when he had earnings yet failed to pay even minimal amounts toward court costs and fees. The proof established his ab ility to work. He was able to purchase a car during his period of probation. Moreover, the trial court fashioned a relatively short jail term to be served in a manner allowing the defendant to continue his employment and his education. U nder these circumstances, thi s court cannot find an abuse of discretion.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge CONCUR:

_____________________________5 Joseph M. Tipto n, Judge

_____________________________ James Curwood Witt, Jr., Judge