# FILED
July 29, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C

01-9803-CC-00139 Appellee, ) ) FRANKLIN COUNTY VS. ) (No. 9191 39 Be low) ) WILLIAM BURT SMITH, ) The Hon. J. Curtis Smith ) Appellant. ) (Revocation of Probation) ) AFFIRMED PU RSUANT TO R ULE 20

O R D E R

This case cam e to be heard on the state’s motion for affirmance of the judgment pursuant to Rule 20, Tennessee Court of Criminal Appeal s Rules.

The appell ant pled guilt y to aggravat ed assau lt and was s entence d to five yea rs on supervised probation. Subsequently, a probation violation report was issu ed , alleging the foll owing violat ions: (1) f ailure to obey the la ws -- arre sted for driving on a suspended license, drug abuse, and pos session of drug paraphernali a, (2) failure to report these arrest

s to the p robatio n offi cer, (3) failure to notify the probation officer or request perm ission to change residence to Ohi o, (4) failure to report to the probation officer, (5 ) possession of narcotic drugs, (6) fail ure t o pay $180 in probation fees, and ( 7) failure to pay restitution in the amount of $94. A probation violation w arrant was issued, and a fter a hearing , the trial c ourt revoked the appellant’s probation and ordered him to s erve the entire five-year sent

ence in incarceration.

The revocation of probation is committed to the s ound discretion of the trial court. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). An appellate court
w i ll not find that a trial court has abused its discretion unl ess the record contains no substantial evidence to support the tr ial court's conc lu sion that the probation should be revoked. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. Crim. App. 1981). The evidence at the revocation hearing need only show that the trial court exer

cised aconscientious and intel ligent

judgment in making the deci sion to revoke probation. State v. Leach , 91 4-2-

S.W.2d 104, 106 (Tenn. Crim. A pp. 1995 ). Moreover , once th e trial cou rt finds by a preponderance of the evidence that a probationer violates a condition of his probation, it is within the court's discretion to revoke probation and cause execution of the judgment as it was originally

entered. T.C.A. §§ 40-35-310,-311(d); State v. Harkins , 811 S.W.2d 79, 82.

Based upon a reading of the record, the s tate’s motion, the appe llant’ s brief, and the appl icable la w, this Court finds that the trial court did not abu se its discretion and the judgment should be affirmed.

IT IS, THEREFORE, ORDERED that the state’s motion to a ffirm the judgmentpursuant to Rule 20 is g ranted. The judgment of the trial court is hereby affirmed. The petitioner being indi gent, costs of this appeal ar e taxed to the state.

In the event the appellan t in dicates an intention to file an ap plication for permission to appeal tothe Tennessee Supreme Court, he may be admitted to bail in the additional amount of $5,000 for a total bond amount of $25,000 with sufficient sureti es to be approved by the clerk of the trial court pending filing and disposition of said application. In default of such bond, the appellant shall be r emanded to the custody of the Tennessee Department of Correction.

_____________________________ DAVID H. WELLES, JUDGE
CONCUR:

_____________________________ JERRY L. SMITH, JUD GE

_____________________________ THOMAS T. WOODALL, JUDGE