# FILED
September 18, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE

AT NA SHVILLE AU GUST 1997 SESSIO N

STA TE OF TENN ESSEE, ) ) C.C.A . No. 01C01- 9610-CC-00447 Appellee, ) ) MAURY

COUNTY VS. ) ) HON. JA MES L. WEA THERFORD , ) JUDGE JOHNNY L EE A MOS, ) ) (Probation R evocation) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : SHARA A. FLA CY JOHN KNOX WALKUP (of coun sel on appeal) Attorney Gen eral & Repor ter Distric t Public Defender 209 W. Madison St. CL IN TO N J . M OR GAN Pulaski, Tenness ee 38478-1208 Assistant Att orney Gener al 450 James Roberts on Parkway JOHN R. WIN GO Nashvil le, Tennessee 37243- 0493 (at hearing & on appe al) Assistant Publ ic Defender T. MICHAEL B OTTOMS 128 North Second Street Distric t Attorney General P.O. Box 1208 Pulaski, Tenness ee 38478-1208 LEE BA ILEY Assistant D istrict A

ttorney Gener

al 10 Public Square P.O. Box 1619 Columbia, Tennessee 38402-1619

OPINION FIL ED: _________________

AF FIRMED

JOE G. RI LEY, JUDGE OPINION1 Appellan t’s name i s spelled

both “Johnny

” and “John

nie” in va rious cou rt documents. 2 The appellant, Joh nny Lee Amos, 1 appeals the orde r of the Maury County Circuit C ourt revok ing his pr obation and req uiring hi m to serve t he balance of an eight (8) year sente nce in the Tennessee Department of Corr ection. The soleissue presented for rev iew is whether the trial cour t erred in r

evoking his probation and ordering t he remainder of his sentence to be se rved in c ustody. The j udgment of the trial court is AFFIRMED.

FACTS
On July 11, 1994, the appellant pled guil ty to agg ravated burglary and attempted burglary. He received concurrent suspend ed sentences of f our (4) years and one (1) year, respecti vely. He was r eleased on time s erved and pl aced on supervis ed probation. In January 1995 , a probation v iolation warrant was issued based on 1) appell ant’s refusal t o report to hi s probation officer and to supply

the name of an employer; 2) failure to pay fees to the pr obation office; and 3) failure to pay court fees. The warra nt was subs equently amended when appell ant was arrested on a new burglary offense. An orde r was issued by the trial court in August 1995, which retired the w arrant and all owed the appel lant to remain o n probation. On August 14, 1 995, the appellant was conv icted of misdemeanor theft and the sale of .5 gr

ams of cocaine. Hewas sentenced to concurre nt terms of eleven (11) months, twenty-nine ( 29) days and eight (8) years, r espectivel y. The sentences were susp ended after appellant served 80 day s. On March 4, 19 96, the appellant pled guilt y to new charges of mis demeanor theft and evading arrest. He received concurrent sen tences of eleven (11) month s, twenty- nine (29) day

s. The judgments

indicate he was to continue i n his current probation status . Two weeks later th e appellant test ed positive for cocaine and3

marijuana. As a result, another probatio n violati on warrant was iss ued. The warrant was later

amended to include new charg es against t he appellant for ar son and attempted agg ravated ar son. During th e revocati on hearing, t he appellant admitt ed to cocaine and marijuana use in violation of his proba tion. The trial court revoked the appellan t’s probation and required the rema inder of his eight (8) year sentence to be served in cust ody.

CONCLUSI ON
Although he admi ts to viol ating his probation, the appe llant arg ues the trial court erred by orderi ng the balance of his sentence to b e served i n the Tennessee Department of Corr

ection. A trial cour

t may revoke probation and order the impos ition of the ori ginal sentence upon a findin g by a preponderance of the ev idence that the per son has violated a condition of probat ion. Tenn. Code Ann. § 40-35-310, 311. The decision to revoke p robation rest s withi n the sound disc retion of the tri al court. Stat e v. Mitchell , 810 S.W .2d 733, 735 (Tenn . Crim. App. 1991). Probation revocations a re subject to an abus e of discretion, rather than a de novo standard of rev iew. Stat e v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). An abus e of discretion is shown if the record is devoid of substa ntial evi dence to support the conclusion that a viol ation of probation has oc curred. Id . The evidenceat the revocation hearingneed only s how that the trial court exer cised a consc ientious and i ntelligent judgment in mak ing its decision. State v. Leach , 914 S.W .2d 104, 106 (Tenn . Crim. App. 1995). At the revocation hearing , the appellant fre ely admitted to using cocaine and marijuana in violation of his probat ion. He explained that the violation was in reaction to his girlfriend leaving him. In response to questions by def ense counsel, he stated that althou gh it would be “nice” to go to a drug rehabilitation center, he did not have a dr ug problem. The trial cour t revoked h is probation.4 The appellant was repeatedly given a n opportunity

to demonstrate he w

as suitable for pr

obation; yet, he continued to v iolate the impos ed conditions. The trial court did not abuse its discretion in revoking appellant’s prob ation and reinstating his original sentence. This issue is w ithout merit.
The judgment of the trial court is AFFIRMED.

____________________________ JOE G. RILEY , JUDGE CONCUR:

______________________________ J. CURWOOD WITT, JUDGE

______________________________ JOE H. WALKER, III, SPECIAL JUDGE