# FILED April 16, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9806-CR-00238 ) Appellee, ) ) ) SUMNER COUN TY VS. ) ) HON. JANE W. WHEATCRAFT, MELISSA ROBERTS, ) JUDGE ) Appe llant. ) (Probation Revocation)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF SUMNER COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : DANA L. S COTT JOHN KNOX WALKUP Assistant Public Defender Attorney Generaland Reporter 117 East Main Stre et Gallati n, TN 37066 GEORGIA BLYTHE FELNER Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 LAWRENCE RAY WHITLEY Distri ct Attorney General WAYNE HYATT Assistant Distri ct Attorney General 113 East Main Stre et Gallati n, TN 37066

OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defenda nt, Melissa Ro berts, appea ls as of ri ght the trial cou rt’s revocati on of herprobation.She was sentenced on November 24, 1997 to four years at thir

ty percent

for thef t of proper

ty val ued over $50 0 and th eft of prope rty valued over$1000

. The court permit ted her to se rve her sentence on probati on, and the condit ions of her probation i ncluded being employ ed, paying probat ion costs, m aking res titution paym ents, and reporting to her pro bation offic er.

D efend ant’s probation of ficer, Taz Whitley, repor ted that Defendant had violated her probati on, and the t rial cour t held a rev

ocation heari ng on Ma y 15, 1998. A fter

hearing testimo ny from W hitley and Defen dant, the trial court revoked Defendant’s pr obation and ord e red her sente nce to be se rved in confine ment . Defen dant appe als

thedec isi on of

thetr ialcou rt , an d we aff ir m.

Both the granti ng and denial of probation r

est in t he sound discret ion of the trialjudge. State v. Mitch ell , 810 S.W.2d 733, 735 (Ten n. Crim. App . 1991). Moreover, the trial judge has the d iscretiona ry authority to revoke probatio n if a preponderance of the evi dence e stabl ishes that a defendant vi olated the cond itions

of proba tion. The trial judge m ust, how ever, add uce su ff icien t evidence during the p robation r evocation hearing to perm it an in telli gent decisi on. Id. The determ ination mad e by the trial court , i f ma de with consci entious judgm ent, is given the weight of a jury verdict an d entitled to affirman ce. Stamps v. State , 614 S.W .2d 71, 73 (T enn. Crim. A pp. 1980).-3- When a probation r

evocation is chall enged, this Court has a li mited scope of review. Before concl uding that a trialjudge erred by find ing a probation violati on, we must establi sh that th e record c ontains n o subs tantial evide nce to support the conclusi on of the trial judge. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). If

the viol ation is

so supported by the record, the judgmentof the t rial cou rt revoking proba tion will not be disturbed o n appeal un less it appears that the trial cou rt acted arb itrarily or otherw ise abus ed its discre tion. S tate v
. Williamson , 619 S.W .2d 145, 146 (Tenn. Crim . App. 1981 ).

In this case, we fi nd thatthe reco rd does contain s ubstan tial evidenc e to support the tri al judge’ s determinati on that Defendant violate d the terms and conditi ons of her probati on. We further f ind no abuse of discreti on in her deci sion to revoke Defendan t’s pro bation. Defendant testified she under stood that the conditi ons of her pro bati on w ere to remain empl oyed, pay pro bation fees and court costs, pay

restitution, and report to her probat ion offi cer. She admitted that she was not employed; thatshe had not made any payments toward probati on fees, court costs, or rest ituti on; and that she had fail ed to report to her probation officer since December of 1997. Taz Whitley confi rmed thatthe foregoi ng were conditions of D efendant’s pro bation and tha t she had inde ed failed to com ply.
Desp ite Defendant’s testimony that she had not obtai ned employment because of her chi ld-care commi tments , that she h ad not m ade pa ymen ts because she had n o mone y, and th at she had not r eported to her

probation officer because she was il l an d afraid; th e trial jud ge rev oked Defe ndan t’s probatio n, stating,-4- [Defen dant] has done absolutely nothing. And at the ti me she was sentenced, it w as made cl ear to her I expec ted her to have employm ent and m ake re stitution to the vic tims. T he m ost sim pl e and elementary t hing that any proba tioner c an do is repor t. I ca n understand not havin g mon ey. I c an un derstand some other problems, but I cannot unde rstand why so meone would not rep ort in to a prob ation office r. Having listened to her, j ust by her demeanor , I have no reason to believe thi s defendant is g oing t o ever take pr obation seriou sly or ever try and c omply w ith the requ iremen ts of a community-based sentence, so I am going to revoke her pr obation and order that

she do the ti me.

We find that a proba tio n violati on is well supported by t he record—most notab ly by Defendant’ s own testi mony. Ther efo re, the trial cou rt’s decision to revoke her probati on may not be overt urned absentan abuse ofdiscretion . We
conc lude th at the re vocatio n in this instan ce wa s within the proper r ange of the trialjudge’s di scretion,rather t han an abuse of her di scretion.

Forthe foregoing reasons, t he judgment of the trialco urt revok ing Defendant’s pr

obation i s affirmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ JOHN EVER ETT WILLI AMS, J UDGE