### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs M ay 21, 2002 STATE O F TENN ESSEE v. EDWAR D BUC K FRA NKLIN Direct Appeal from the Criminal Court for Sumner County Nos. 129-2000 & 155-2000 Jane Wheatcraft, Judge

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

Defend ant, Edward Buck Fran klin, pled guilty to two counts of attempted r ape and one count of aggravated

burglary . He received a sentence o f t hree ye ars for each conviction, with two of the sentences to be ser

ved conc urrentl y with each other but consecutive to the sentence for the third conviction, for an effectiv e sentence of six years. A fter receiving credit for

time previously served in jail, his sentences were suspended and he wa s placed on probation. Thereafter, three probation violation warrants were filed ag ainst him. Follo wing a hearing on the third warrant, the trial cour t revoked Defendant’s probation and ordered that he serve his senten ce in th e Department of Correct ion. We af

firm the j udgmen

t of the tr ial cour t. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cr

iminal Court Affirm

ed.
T HOMAS T. W OODA LL , J., delivered the opinion of the court, in which J OHN E VERE TT W IL LI AMS and N ORMA M C G EE O GLE , JJ., joined. David Allen Doy

le, Distr ict Public D efende

r; and Tho mas J. S mith, Assistant Public Defender, Gallatin, Tennessee, for the appellant, Edward B uck Franklin. Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; Lawr ence Ray Whitley , District Attorney Gene ral; and Sallie Wade Brown, Assistant District Attorney Gene

ral, 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 eve ning, Defendant was in the company of the second victim of attempted rape. Defendant tore off her dress while she beg ged him “not to do this.” The sec ond victim h ad a stra ight ra zor in her possessio n and nick

ed Defe ndant bet ween his legs. While he was writhing in pain, she was able to esc ape.-2-

Following his indic tm ent by the Gra nd Jury of Sumner County , Defendant pled guilty on June 5, 2000, pursuant to a negotiated plea ag reement as set forth above. On January 31, 2001, the third pro bation vio lation wa

rrant wa s filed ag ainst Def endant. I t is not clear from

the record what led to the filing of the first two probation violation w arrant s. The third warrant alleged that he ha d 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 “chaper one agre ement.” In August 2001, an amendment

to the third proba tion violat i on warrant was filed alleging that Defendant had moved without his probation officer’s knowledge or pe rmission in Febru ary

2001, had

not repor ted to his probation officer since January 30, 2001, and had not paid any fees since his probation commenced.
At the evidentiary he aring for the probation violation warrant, as a men ded, th e probation officer testified that (1) she had no proof t hat Defendant had paid any of his probation fees; (2) Defendant

had absconded for several months; and (3) her investigation showed Defendant had moved i nto a home where a min or child r esided, in violation

of one of

the condi

tions of his probation, and ha d a dmitted this to her. Defendant also testified at the hearing. He stated that he was forced to move from

a half- way

house in Hender sonville, where h

e had be en resid

ing, be cause 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 offi cer ] would have a warrant signed on me.” Whe

n questioned by

the trial court, D efenda

nt admitte d that he l eft the a rea bec ause he did not w ant to go

to jail. Based upon the proof presented, the trial cou rt found Defendant to be in violation of conditions o f his probation, revoked his probation, and ordered that he ser ve his sentence in the Department

of Correction. On a

ppeal , Defendant argues that the trial c ourt failed to exercise “a conscientious and intel ligent ju dg me nt ” b y fi nd in g h im in vi ol at io n o f h is pr ob at io n b y a preponderance of the evidence

. A trial court may re

voke probation and order the imposition of the original sentence if it finds by a prepond

erance of the ev idence t hat the pe rson has v

iolated a condition

of proba ti on. 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. Ap p. 1991). Revocation of probation and a community c orrections sentenc e is subje ct to an abuse of discretion standardof review, rather than a d e novo standa rd. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is abused only if the r ecord contains no substantial evidence to support the conclusion of the trial co ur t that a violation of probation or community corr ection sentence has occurred. Id. ; State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation need not b e established bey ond a rea sonable

doubt, and the evidence need only show that the trial judge exercised a conscientious and intelligent judgment, rather than acting arbitrarily

. Gregory , 94 6 S.W.2d at 83 2; State v. Leach , 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). After our review of the entire record, w e conclude that there is substantial evidence to support the trial court’s conclusion that a violation of probation occurred, and, therefore, the trial cou rt did-3-

notabuse its discre tion in revoking probation and ordering D efendant to serve his sentence in the Departm ent of Cor

rection . Defen dant is not entitled t o relief in this app eal. CONCLUSION For the foregoing r

easons, the judgment of the trial court is AFFI RMED.

____________________________________ THOMAS T. WOODALL , JUDGE