# FILED
December 31, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 02C 01-9611-CC-00413 Appellee, ) ) MADISON COUNTY VS. ) ) HON. FRANKLIN MURCHISON, CLYDE A. EDGESTON, ) JUDGE ) Appellant. ) (Probation Revocation)

FOR THE APPE LLANT: FOR THE APPELLEE:
GEORGE GOOGE JOHN KNOX WALKUP Public Defender Attorney General & Repor ter DANIEL J. TA

YLOR JANICE L. TU RNER Asst. Public Defender Attorney for the State 327 West Baltimore St. 450 Jame s Roberts on Pkwy. Jackson, TN 38301 Nashville, TN 37243-0493 JERRY WOODALL District Attorney General NICK NICOLA Asst. District Attor

ney General P. O. Box 2825 Jackson, TN 38301

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

The defendant was convicted on April 12, 1993, on six counts of reckless endangerment, vandalism ov er one thousand dollars ($1000), evading arrest, reckless driving, leaving the scene, dr iving while hi s license was in arevoked status, and vi olation of the motor vehicle reg istration law. For these co nvictions he receive d an eff ective sentence of eight years and was placed on intensive probation. On August 1, 1994, the defendant was transferred to reg ular probation.

On April 1, 1996, a warr ant was issuedalleging that the defendant had violated the terms of his probation by failing to report an d by failing to pay costs and restitution. A hearing was held on June 25, 1996, and the trial court revoked probation and ordered the defendant to serve the

entire sentence in the Depar tment of Correction. It is from this order that the defendant now appeals, contending that the tr ial court erred in revoking his probation and in ordering him to serve the entire eight year sentence. We do not agr ee and, t herefo re, aff irm the ju dgment b elow.

When a trial judge finds that a probationer has violated the conditions of his or her probation, the trial judge has the authority to revoke probation. See T.C.A. § 40-35-310. In determining whether or not to do so, the trial judge need not find beyond a reasonable doubt that a viol ation of the terms of probation has occurred. The existence of a violation need only be supported by a preponderanc e of the evidence. T.C.A. § 40- 35-311(d).
In probation revocation hearings, the credibility of the witnesses is for the determination of the trial judge. Bledsoe v. State , 215 Tenn. 553, 387 S.W.2d 811, 8143

(1965); State v . Delp , 614 S. W.2d 395, 398 (Tenn. Crim. App. 1980). On revi ew the findings of the trial judge have the weight of a jury verdict. Delp , 614 S.W.2d 398; Carver
v. State , 570 S.W.2d 872, 875 (Tenn. Crim. App. 1978). We will not disturb the judgment of the trial judge in the absence of an abuse of discretion. For this Court to find an abuse of the trial court’s discretion, thedefendant must demonstrate “that the record c ontains no substantial evidence to support the conclusion of the trial j udge that a violation of the conditionsof probation has occurred.” State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991).

At the hearing, the defendant admitted v iolating his probation by failing to report since May of 1995 and by failing to make payments of costs and restitut ion in two cases. The defendant explained this failure by testifying

that he had stopped reporting because of his work hours. He explained that he was empl oyed digging g raves, had therefore been frequently out of tow n, and did not return until after his p robation officer had com pleted his work day . He further testified that he had not had transportation t o facilitate reporting. Although s omewhat contradictory , the defendant explainedhis failure to pay court costs and res titution by explaini ng that he had been out of work for months at a time.

At the conclusion of the hearing, the trial judge found that the defendant had violated his probation in a substanti al way, that the defendant had “elected not to be on probation from abo ut May of ‘95 on, . . . .” The trial court further found that the defendant’s explanations were not plausible nor reasonable. Thetrial judge concluded that the defendant had not made a good f aith effort to make his r estitution payments. The trial judge revoked the defendant’s probation and ordered him to the custody of the Department of Correction and recommended Boot Camp.4 The trial judge, in his discre tion, determined that

the defendant had violated the terms and conditions of his pr obation and that the defend ant should serve his full sentence. The evidence adduced at the hearing suppo rts the trial judge’s findings and supports a finding that the defendant is not a good candidate f o r further probation. Finding no abuse of discretio n, we aff irm the ju dgment o f the cou rt below.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ DAVID G. HAYES, Jud ge