IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 21, 2002

STATE OF TENNESSEE v. EDWARD BUCK FRANKLIN

Direct Appeal from the Criminal Court for Sumner County

Nos. 129-2000 & 155-2000 Jane Wheatcraft, Judge

No. M2001-02303-CCA-R3-CD - Filed September 12, 2002

Defendant, Edward Buck Franklin, pled guilty to two counts of attempted rape and one count of

aggravated burglary. He received a sentence of three years for each conviction, with two of the

sentences to be served concurrently with each other but consecutive to the sentence for the third

conviction, for an effective sentence of six years. After receiving credit for time previously served

in jail, his sentences were suspended and he was placed on probation. Thereafter, three probation

violation warrants were filed against him. Following a hearing on the third warrant, the trial court

revoked Defendant’s probation and ordered that he serve his sentence in the Department of

Correction. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

THOMAST.WOODALL,J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE, JJ., joined.

David Allen Doyle, District Public Defender; and Thomas J. Smith, Assistant Public Defender,

Gallatin, Tennessee, for the appellant, Edward Buck Franklin.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;

Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The record reveals that on or about June 3, 1999, Defendant unlawfully entered the home of

the first victim of attempted rape. She was sleeping at the time. Defendant awoke her and told her

that he “was going to have her.” The victim, a martial arts expert, fended Defendant off, picked him

up, and threw him out of her apartment. Later that same evening, Defendant was in the company of

the second victim of attempted rape. Defendant tore off her dress while she begged him “not to do

this.” The second victim had a straight razor in her possession and nicked Defendant between his

legs. While he was writhing in pain, she was able to escape.
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Following his indictment by the Grand Jury of Sumner County, Defendant pled guilty on

June 5, 2000, pursuant to a negotiated plea agreement as set forth above. On January 31, 2001, the

third probation violation warrant was filed against Defendant. It is not clear from the record what

led to the filing of the first two probation violation warrants. The third warrant alleged that he had

violated a condition of his probation by moving into a residence where a minor child lived without

the probation officer’s permission and without a “chaperone agreement.” In August 2001, an

amendment to the third probation violation warrant was filed alleging that Defendant had moved

without his probation officer’s knowledge or permission in February 2001, had not reported to his

probation officer since January 30, 2001, and had not paid any fees since his probation commenced.

At the evidentiary hearing for the probation violation warrant, as amended, the probation

officer testified that (1) she had no proof that Defendant had paid any of his probation fees; (2)

Defendant had absconded for several months; and (3) her investigation showed Defendant had

moved into a home where a minor child resided, in violation of one of the conditions of his

probation, and had admitted this to her. Defendant also testified at the hearing. He stated that he

was forced to move from a half-way house in Hendersonville, where he had been residing, because

he was wrongfully accused of using drugs. His excuse for not reporting back to his probation officer

was that he was living in Shelbyville and “figured [the probation officer] would have a warrant

signed on me.” When questioned by the trial court, Defendant admitted that he left the area because

he did not want to go to jail.

Based upon the proof presented, the trial court found Defendant to be in violation of

conditions of his probation, revoked his probation, and ordered that he serve his sentence in the

Department of Correction. On appeal, Defendant argues that the trial court failed to exercise “a

conscientious and intelligent judgment” by finding him in violation of his probation by a

preponderance of the evidence.

A trial court may revoke probation and order the imposition of the original sentence if it finds

by a preponderance of the evidence that the person has violated a condition of probation. Tenn.

Code Ann. §§ 40-35-310, 311 (1997). The decision to revoke probation rests within the sound

discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

Revocation of probation and a community corrections sentence is subject to an abuse of discretion

standard of review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.

1991). Discretion is abused only if the record contains no substantial evidence to support the

conclusion of the trial court that a violation of probation or community correction sentence has

occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation

need not be established beyond a reasonable doubt, and the evidence need only show that the trial

judge exercised a conscientious and intelligent judgment, rather than acting arbitrarily. Gregory, 946

S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

After our review of the entire record, we conclude that there is substantial evidence to support

the trial court’s conclusion that a violation of probation occurred, and, therefore, the trial court did
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not abuse its discretion in revoking probation and ordering Defendant to serve his sentence in the

Department of Correction. Defendant is not entitled to relief in this appeal.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is AFFIRMED.

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THOMAS T. WOODALL, JUDGE