# FILED
September 10, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JACKSON JULY 1999 SESSION

STATE OF TENN ESSEE * C.C.A. # 02C01-9903-CC-00101

Appellee, * HENDERSON COUNTY VS. * Honorable Roy Morga n, Jr, Judge RICHARD SMITH, * (Probation Rev ocation --Sale

of Cocaine) Appellant. *

FOR THE APPELLANT : FOR THE APPELLEE : CLIFFORD K. McGOWN (on appeal) PAUL G. SUMMERS 113 North Court Square Attorney General & Repor ter Waverly, TN 37185 CLINTON J. MORGAN GEORGE MORTON GOOGE (at trial) Counsel for the State District Public Defender 425 Fifth Avenue North Nashville, TN 37243 MICHAEL DEAN RASNAKE Assistant Public Defender JAMES G. (JERRY) WOODALL 227 West Baltimore Street District Attorney General Jackson, TN 38301 BILL R. MARTIN Assistant District A

ttorney General 777 West Church Street Lexington, TN 38351

OPINION FILED: _______________

AFFIRMED -

RULE 20

JOHN EVERETT WILLIA MS,-2- Judge 

### OPINI ON The defendant, Richard Smith, appe als a judgment from the Circuit Court of Henderson County revoking his probation. The defendan t does not contest that he violated the terms of his probation. He argues only that the trial court erred in fully revo king his probation. He asserts that he should hav e been in ca rcer at edfo r a

sh or t t im e a ndth en retu rn edto in te ns iv e p ro ba ti on . We AFFIRM the judgment from the tr ial court.
In 1991, pursuant to a negotiated plea, the defendant was convi cted of three counts of the sale of cocaine, a Schedule II controlled subst ance, and was sentenced to nine years on eac h count, with his sentenc es to run concurrently

. The trial court ordered that the defendant serve four months in jail and the remaining eight year

s and eight months on community corrections. In Marc

h of 1994, however, the defendant w as transferred from community cor rections to probation, as allowed by statute. See Tenn. Code Ann. § 40-36-106(e)(3 )(A) (trial court may transfer an offender from comm unity correction to probation if certain requirements are satisfied).
The defendant then violated his probation by acquiring new convictions, by testing positiv

e for use of drugs, and by absc onding to Florida for approximately two years. On June 8, 1998, the t rial court revoked his probation, sentenc ed him to ninety da ys in the co unty jail, and place d him on in tensive probation for the remaining bal ance of his original sentenc e.
On October 27, 1998, the defendant’s pr obation officer filed the instant probation violation repo rt, alleging that the defendant had tested positive for marijuana or cocaine use on four separate occasions. After a hear ing, the trial court found that the defendant had violat ed the conditions of his probatio n and-3- entered an order that revoked his probation and ordered him to serve his sentence in the Department of Corr ection.

The defendant does not contest that he violated the terms of his probation. He argues only that the trial court err

ed in fully revoking

his probation. He asserts that he should hav e been incarcerated for a short time and then returned to intensive pr obation.
A trial court may rev

oke probation and order the impos ition of the original sentence upon a finding by a pr eponderance of the evidence that the person has violated a condition of probation. Tenn. Code Ann. §§ 40-35-310 to -311. The decision to revoke proba tion rests within the

sound discretion of the trial court. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Rev ocation of probation and a community corr ections sentence is subject to an abuse of discretion standard of rev iew, rather than a de nov o standard. State v. Harkins , 811 S.W.2d 79 (Tenn. 1991). Discretion is abus ed only if the record contai ns no substantial evidence to s upport the trial court’s conclusion that a viol ation of probation or community cor rection sentence has occurr ed. Id. ; State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a v iolation need not be established beyond a reasonabl e doubt, and the evidence need only show that the trial judge exercised a conscientious and intelligent judgment, and did not act arbitrarily. Gregory , 946 S.W.2d at 832; State v. Leach , 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).
We conclude that the evidence does not preponder ate against the findings of the trial court,and we find no error of law mandating reversal. Theref ore, purs uant to Ru le 20 of t he Tenn essee Cou rt of Crim inal Appe als, we AFFIRM the judgment from the tr ial court.-4- ______________________________ JOHN EVERETT W ILLIAMS, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ JAMES CURW OOD WIT T, JR., Judge