FILED

April 16, 1999

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

MARCH SESSION, 1999

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9806-CR-00238

)

Appellee, )

)

) SUMNER COUNTY

VS. )

) HON. JANE W. WHEATCRAFT,

MELISSA ROBERTS, ) JUDGE

)

Appellant. ) (Probation Revocation)

ON APPEAL FROM THE JUDGMENT OF THE

CRIMINAL COURT OF SUMNER COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

DANA L. SCOTT JOHN KNOX WALKUP

Assistant Public Defender Attorney General and Reporter

117 East Main Street

Gallatin, TN 37066 GEORGIA BLYTHE FELNER

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243

LAWRENCE RAY WHITLEY

District Attorney General

WAYNE HYATT

Assistant District Attorney General

113 East Main Street

Gallatin, TN 37066

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Melissa Roberts, appeals as of right the trial court’s

revocation of her probation. She was sentenced on November 24, 1997 to four

years at thirty percent for theft of property valued over $500 and theft of property

valued over $1000. The court permitted her to serve her sentence on probation,

and the conditions of her probation included being employed, paying probation

costs, making restitution paym ents, and reporting to her probation officer. 

Defendant’s probation officer, Taz Whitley, reported that Defendant had

violated her probation, and the trial court held a revocation hearing on May 15,

1998. After hearing testimony from Whitley and Defendant, the trial court

revoked Defendant’s probation and ordered her sentence to be served in

confinement. Defendant appeals the decision of the trial court, and we affirm.

Both the granting and denial of probation rest in the sound discretion of the

trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

Moreover, the trial judge has the discretionary authority to revoke probation if a

preponderance of the evidence establishes that a defendant violated the

conditions of probation. The trial judge must, however, adduce sufficient

evidence during the probation revocation hearing to permit an intelligent decision.

Id. The determ ination made by the trial court, if made with conscientious

judgment, is given the weight of a jury verdict and entitled to affirmance. Stamps

v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980).
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When a probation revocation is challenged, this Court has a limited scope

of review. Before concluding that a trial judge erred by finding a probation

violation, we must establish that the record contains no substantial evidence to

support the conclusion of the trial judge. State v. Harkins, 811 S.W.2d 79, 82

(Tenn. 1991). If the violation is so supported by the record, the judgment of the

trial court revoking probation will not be disturbed on appeal unless it appears

that the trial court acted arbitrarily or otherwise abused its discretion. State v.

Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981).

In this case, we find that the record does contain substantial evidence to

support the trial judge’s determination that Defendant violated the terms and

conditions of her probation. We further find no abuse of discretion in her decision

to revoke Defendant’s probation. Defendant testified she understood that the

conditions of her probation were to remain employed, pay probation fees and

court costs, pay restitution, and report to her probation officer. She admitted that

she was not employed; that she had not made any payments toward probation

fees, court costs, or restitution; and that she had failed to report to her probation

officer since December of 1997. Taz Whitley confirmed that the foregoing were

conditions of Defendant’s probation and that she had indeed failed to comply.

Despite Defendant’s testimony that she had not obtained employment

because of her child-care commitments, that she had not made payments

because she had no money, and that she had not reported to her probation

officer because she was ill and afraid; the trial judge revoked Defendant’s

probation, stating, 
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[Defendant] has done absolutely nothing. And at the time she was

sentenced, it was made clear to her I expected her to have

employm ent and make restitution to the victims. The most simple

and elementary thing that any probationer can do is report. I can

understand not having money. I can understand some other

problems, but I cannot understand why someone would not report

in to a probation officer. 

Having listened to her, just by her demeanor, I have no

reason to believe this defendant is going to ever take probation

seriously or ever try and comply with the requirements of a

community-based sentence, so I am going to revoke her probation

and order that she do the time.

We find that a probation violation is well supported by the record—most

notably by Defendant’s own testimony. Therefore, the trial court’s decision to

revoke her probation may not be overturned absent an abuse of discretion. We

conclude that the revocation in this instance was within the proper range of the

trial judge’s discretion, rather than an abuse of her discretion.

For the foregoing reasons, the judgment of the trial court revoking

Defendant’s probation is affirmed.

____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

JOE G. RILEY, JUDGE

___________________________________

JOHN EVERETT WILLIAMS, JUDGE