# FILED
December 8, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE AUGUST SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9709- CR-00375 ) Appe llant, ) ) SULLIVAN COUNTY V. ) ) ) HON. PHY LLISH. MI LLER, JUDGE PAUL J.SEYMOUR, ) ) Appellee. ) (AGGR AVATED ASSAUL T)

FOR THE APPELLANT : FOR THE APPELLEE : JULIE A. MART IN JOHN KNOX WALKUP Attorn ey at Law Attorney General& Reporter P.O. Box 426 Knoxvill e, TN 37901-0426 GEORGIA BLYTHE FELNER (On A ppea l) Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding STEPHEN M. WA LLACE 425 Fifth Avenue North Distri ct Public

Defender Nashvill e, TN 37243 LESLIE S. HALE H. GREELEY WELLS, JR. Assistant Public Defender District Attorn ey Ge neral P.O. Box 839 Blountvi lle, TN 37617-0 829 EDWARD EUGENE WIL SON (At Tr ial) Assistant Distri ct Attorney General 140 Blountville Bypass P.O. Box 526 Blountvi lle, TN 37617-0 526

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defe ndan t, Paul J unior S eymo ur, app eals as of ri ght from the r evocation of his probat ion by the Sul livan Cou nty CriminalCourt. He conte nds that t he trial court erre d in revok ing his pro bation. W e affirm the judgm ent of the tria l court.

The facts rev

eal that o n August 16, 1996, police of ficer Shannon Castle was dispatched to a trai ler park af ter receiving a cal l that Defendant was tryin g to run
overhis wife with a motorc ycle. When the off icer arrived at t he scene he st opped Defen dant. Defend ant then got off the motorcycl e and approached the of ficer i n a violent manner saying that the offic er wou ld have to use his gu n if he was going to take Defendant to j ail. Defendant also t old the of

ficer t hat his wi fe had stolen one hundred dollars of his money and t hat he was going to k ill her. Defen dant’s wife told the officer

that Defendant

had threa tened to ki ll her and their chi ldren. Defendant ha d tol d his famil y to leave the trai ler, and t hen as Defendant’s wife was wal king down the road wit h her three chi ldren, El izabeth (9) , Paul (14) and Mic hael (4), Defendant tri ed to run over them with a motorcycle at l east twice.
Additionally, during theevening of Au gust 30, 199 6, Defenda nt becam e very argume ntative with his 14-year-old s on and ch oked him severa l t ime s. Later, Defen dant pu lled a knife o n him a nd threa tened to kill him.

On April 14, 1997, Defendant pl ed guilt y in the Sul livan County C riminal Court to aggravated assault, felony reckl ess en dangerment, si mple assault, violat ion of registr ation laws, and driving witho ut a mo torcycle licen se. Defendant received an effective sentence of ei ght (8) ye ars which was suspendedand D efenda nt was-3-

placed on supervised probation. He was o rdered t o con tinue a nd ke ep all counseling appointments, take his medications, perform 300 hou r s of com munity service, an d stay in the state of T ennes see.

On April 16, 1997, and April18, 1997, Prob ation O fficer Bill Edwar

ds fil ed probation violat ion warrants. The warran ts alleged, and Def endant admitted, that t he address he gave as his home address was false and that he had failed to notify the probation officer

of his change of

address. Defendant also admitted thathe fail ed to call his prob ation office r, failed to con tinue his m ental hea lth treatme nt, and that he left t he state wit hout permissi on. Defendant’s probation was revoked on August 1, 1997, and h e was ordere d the s erve h is sent ence in the Tennessee Department of Correcti on.

In revoki ng Defendant’s pr obation, t he trialcourt noted: [T] hese were ve ry violent offen ses involvin g dang er to yourwife, y

our child ren and it was very critical. One of the most criti cal thi ngs was that you continu e y our mental health trea tment.

. . . [Y]ou did leave a

voice mail message on A pril 1 6th indicat ing that you had moved, but you have not reported s ince then. You, in effec t, absconded. You apparent ly , according to your ow n adm ission , that’s exactly what you did. You knew about tr ansferri ng probation, you knew that it had to be done, yet it was never done before you moved around. You completely abandon ed th e men tal health treatment. The officer s in these cas es, one was opposed to probation because due to the vi olence of t he offense, the other

officer said you n eeded menta l health trea tment, stated the victims [D e fendant’s wife an d children] were scared to deat h of you.-4- A trialcourt may revoke p ro bation and orde r the imposi tion of t he original sentence upon a findi ng by a pr eponderance of the evi dence that t he person has violated a cond ition of prob ation. T enn. Code Ann . §§ 40-35-310, 311. The decision to revo ke pro bation rests w ithin the sound discr etion of the trial cour t. State
v. Mitche ll , 810 S.W.2d 733, 735 (Tenn. Cri m. App. 1991). Probat ion revocat ions
a r e subject to an abuse of disc retion, rather t han a de novo standar d of rev iew. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991 ). An abuse of di scretion is shown if the record is devoid o f substa ntial eviden ce to sup port the co nclusion that a violat ion of proba tion has o ccurred
. Id . The evidenc e at the revocation heari ng need only show that

the tri al court ex

ercised a con scienti ous and intel ligent j udgment i n making its decision
. State v. Leach , 914 S.W.2d 104, 106 (Tenn. Cr im. App. 1995). Once it is determined tha t a defendan t has violated his prob ation, the court has the discr

etion to order th e defe ndan t to beg in servin g his se ntenc e as o riginally entered. Tenn. Cod e An n. §§ 40 -35-311(d) an d 40-36-10 6(e)(3)(B) and (4); Sentencing Com mission Com ments to Tenn . Code Ann. § 4 0-35-31 0; State v. Duke , 902 S.W .2d 424 , 427 (T enn. C rim. App . 1995).

Defendant admitted at the hearing that he vi olated theterms of his pr obation,
so that wa s sub stantia l eviden ce to s uppo rt the tria l court’s revocation orde r. See , e.g. , State v . Yvo nne Bu rnette , C.C.A. N o. 03C 01-960 8-CR -00314 , Knox C ounty (Tenn. C rim. App., Kno xville, July 25, 1997) (ma ndate issued Apr. 22, 1998 ). The lowercourt was statutori ly authorized to impose Defendant’s original eight (8)year sentence upon revocati on of proba tion. See Tenn. Code Ann. § 40-35-310. Contrary to Defendant’s ass ertion, we are not requi red at thi s stage to r econsider t he sentencing principles
. See Burne tte , C.C

. A. No. 0 3C01 -9608-C R-003 14; State v. Stevie Q. Taylor , C.C.A. No. 02C0 1-9 504- CC-0 0108 , Ma dis on Co unty ( Tenn . Cr im.-5-

App., Jackson, May 1, 1996) (no Rule 11 appl icatio n filed) . We cannot say that t he trialcourt abused its di scret ion in o rderin g Def enda nt to se rve the terms of his originalsentence.
Accordingly , the judg ment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge