# FILED October 5, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE AUGUST 1999 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 03C01-9811-CR-00413 Appellee, ) ) Knox County v. ) ) Honorable Ray L. Je nkins, Judge JOHN W. McBEE, JR., alias, ) JOHN WARREN McBEE, alias, ) (Probation Revocation) JOHN WARREN McBEE, JR., alias, ) ) Appellant. )

FOR THE APPELLANT : FOR THE APPELLEE : MARK E. STEPHENS PAUL G. SUMMERS District Public Defender Attorney General & Repor ter DAVID GALL TODD R. KELLEY Assistant Public Defender Assistant Attorney Gener al 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37921 Nashville, TN 37243-0493 RANDALL E. NICHOLS District Attorney General ZANE M. SCA RLETT Assistant District A

ttorney General 400 Main Street P. O. Box 1468 Knoxville, TN 37901- 1468

OPINION FILED: ____________________________

_____ AFFIRMED ALAN E. GLENN, JUDGE2 

### O P I N I O N
The defendant, John W. McBee, Jr., entered guilty pleas to two counts of robbery in January 1997, in the Knox County Criminal Court. In one

case, the trial court s

entenced the defendant to six years, with nine months to be served in confinement foll owed by the remainder

of the sentence on probation. In the other case, the defendan t received a fouryear suspended sentence and ten years of probation. These sentences we re ordered to be served consecutivel

y. In February 1997, the defendant entered a guilty plea in the Knox County Criminal Court to theft and received a one-year probationary sentence to be served cons ecutivelyto the pre vious prob ationary s entence s. These probatio nary sentences were revoked in November

1998, following the

issuance of a probation viol ation warrant, and the defendant was ordered to serve these sentences. He filed an appeal as of right, claiming that the trial c ourt shou ld not ha ve revoked his probation. Based upon our review of the record, and of applicable law , we affirm the action of the trial court.

A probation violation w arrant issued for the defendant on Nov ember 20, 1997, alleging that the defendant failed to report to hi s probation officer, the defendant failed to pay supervision fe es and court costs, and that hi s place of employment had gone out o f business. The warrant was late r ame nded to include the allegation th e defendant had been convicted

of three additional thefts.Th e defen dant was arrested and a pr obation revocation hearing was set for J anuary 15, 1998. After the trial court released him on his own recognizance, the defendant fail ed to appear for t he revocation he aring. Eight months later, the defendant was arrested and a revocation hearing was held on November 3, 1998. The defendant did not dispute the abov e alle ged violations, but as ked the trial court to consider an alternativ

e to revocation.

The trial court revoke d the defendant’s probation and ordered him to serve the re mainder

of his sentence in confinement. The defendant ti mely appealed, listing on e issue: whether the tri al court erred in rev oking the defendant’s probation.3 The standard of review upon a n appeal ofan order revoking pr obation is the abuse of discretion standard. In State v. Stubblefield , 953 S.W.2d 2 23, 226 (Tenn. Crim. App. 1997), this C our t stated that “if the record presents substantial evidence to supp ort revocati on, th e trial court’s action will be approved.”

Likewise, in State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991), cited in Stubblefield , th e court said that “[i]n order for a reviewing

court to be warranted in finding an abuse of discretion in a probation revocation case, it must be established that the record contains no subst antial evidence to support the conclusion of the trial judge that a v iolation of the conditions of probati on h as occurred.” Harkins , 811 S.W.2d at 82. If the trial judge finds by a preponderance of the evidence that a probation violation has occurred, the court may r evoke the defendant’s probation. Tenn. Code Ann. § 40-35-311(e) (1997).

In the case sub judice , the defendant adm it ted that while on probation he was convicted of additional criminal offenses, he fail ed to report to his probation officer, and he failed to pay supervision and court costs. Further,he absconded and failed to appear for his revocationof probation hearingwhich was not held until eight months later, following his rearrest. Therefore, the trial cour

t did not abuse its discretion by revoking the defendant’s probation. For the foregoing reasons , we affirm the decision of the tr ial court.

_____________________________________ ALAN E. GLENN, JUDGE CONCUR:

____________________________________ JOSEPH M. TIPTON, JUDGE

____________________________________ JOHN EVERETT WILLIAMS, JUDGE