# FILED
July 7, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON
STATE OF TENN ESSEE, ) ) Appellee, ) C. C. A. NO. 02C01-9812-CC-00382 ) vs. ) MADISON COUNTY ) JAMES J. COLE, ) No. 98-504 ) Appellant. )
O R D E R

This matter is before the Court u pon the state’s motion to affirm the tr ial court judgment by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The appellant is appealing the trial court’s rev ocation of his probation. On June 10, 1998, the appellant pled guilty to theft of property over $1,000 an d felony evading arrest and received an effective four y ear sentence. The judgments reflec t that the appellant was placed directly on probation and ordered to pay restitution and court costs. In July 1998, the appellant pled guilt y to simple possession of mar ijuana, possession of drug paraphernalia, drivin g on a suspended license, and v iolation of the vehicle r

egistration law. In August 1998, he w as arrested for theft of property over $500 and attempted robbery. Those charges were pending at the time o f the revocation hearing. On November 23, 1998, the appellant ’s probation was rev

oked.

After a heari ng, the tri al court found that the appel lant viol ated the terms and conditions of his probation by “having new conv

ictions and not paying restitution or court costs.” The judge al so stated during the heari ng that the appellant had failed to report the new convictions and charges. The judge, however, citing the appellant’s young age, only ordered him to serve eleven months and twenty-nine days of the full sentence.
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 has2

violated a condition of probation. T.C.A. § 40-35-311(e ). The decision to revoke probation rests withi n the sound discretion of the tri al court. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revoc ation of probation is subject t o 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 abused only if the record co ntains no substantial evidence to support the conclusion of the tr ial court that a viol ation of probation has occurred. Id. ; State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation need n ot be established beyond a re asonable doubt, and the evidence need only sho w that the trial judg e exercised a conscient ious and intelligent judgment, r

ather than acting arbitr arily. Gregory , 946 S.W.2d at 832; State v. Leach , 914 S.W.2d 104, 10 6 (Tenn. Crim. App. 1995).

On appeal, the appellant concedes that he violated the terms and conditions of his probation. H owever, he contends he w as unaware he was on supervised probation becau se the trial court did not file the probation order outli ning the terms and conditions of his proba tion until October 8, 1998. A ccordingly, he arg ues “[t]his is not a case of a non-cooperating probationer w illfully ignoring

his responsibilities under the grant of his probati on.” Despite the probation or der not being filed until after he was arrested on the subsequent charges, the judgments in this case clearly reflect that the appellant was plac ed directly on probation and ordered to pay restitution and costs. Furthermore, the appel lant testified during the hear ing that he knew he w

as not supposed to br eak the law while on pr obation. During a rguments at the hearing, appellant’s counsel agree d that the appellant should not be al lowed to disregard the law completely, but argued that “something less than serving his four year sentence would be in order.” The trial j udge apparently agreed.

Having review

ed the record in light o

f the appellant’s argument, w e find that the evidence fully s upports the trial court’ s action. The appellant has si mply failed to show how the trial

court abused its discret ion.3 Accordingly, the st

ate’s motion is granted. It is hereby ORDERED that the judgement of the trial court i s affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals. Costs of this appeal shall be assess ed to the state.

______________________________ JOE G. RILEY, JUDGE

______________________________ DAVID G. HAYES, JUDG E

______________________________ JOHN EVERETT WILLIAMS, JUDGE