### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs O ct obe r 3, 200 6
STATE OF TENNESS EE v . EFREM IRA McCORY,

ak a EFR EM H AM PT ON

Direc t Appeal from the Circ uit Court for Madison Cou nty

No. 02-375 Donald H. Allen, Ju dge

No. W2006-00034-C CA-R 3-CD - F iled Janu ary 5, 2007

Following a re vocation hea ring , the trial court revoke d the probation of Def endant, Ef

rem I ra McCory , and orde red him to serve his two-y ear sentenc e in c onfinement. In his appea l, Defe ndant arg ue s th a t th e tr ia l c ou rt abu se d it s d isc re tio n in re vo kin g his pr ob a tio n. Af te r a re vie w o f this ma tte r, we a ff

ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed
T H O M A S T. W O O D A LL , J ., delivere d the opinion of the court, in which D AVI D G. H AYES and R O BERT W. W EDEMEYER , J J ., joined.
Geor g e Morton Goog e, District Pu b l i c D ef en d er ; an dGr ego ryD. Go o k i n , As s i s t an tP u b l i c D ef en d er, for the a ppellant, Efr em I

ra Mc Cory , aka E fre m Hampton.
Rob e rt E. Coo pe r, Jr., At torne y Ge ne ra l and Re po rt e r; B lin d A kr a wi , A ssi sta nt A tto rn e y Ge ne ra l; J ames G. ( J erry ) Woodall, District Attorney Gene ral; and Shaun A. Br o wn , Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee
.

OP IN ION
On F e br ua ry 12 , 20 03 , De fe nd a nt ple d g uil ty to p os se ssi on of

mari juana wi th i nte nt t o s e ll, a Class E fe lony . He wa s sentence d as a Rang e I , standard of fende r to two y ear s, all suspended, a nd place d on intensive supervised pr obation. As part of the t erms of his probation, Def endant a g ree d to p a y his fi ne s a ndc ou rt

c os ts at th e rate of

$1 00 pe r m on th, be g inn in g May 1, 20 03 ; su bmi t to rand om dru g sc re e ns ; ob ta in a n a lc oh ol and dr ug a sse ssm e nt; a ndma int a in f ull -t ime e mpl oy me nt.
On Fe bruary

9, 2005, a probation violation warrant was issued alleg ing that Defe ndant had failed to pa y his f

ines and court costs as instructed by the court. A probation re vocation hea ring was held on Dec ember

5, 2005, at which De fenda nt testified that he had been working for a few months at Quality I ndustry in Nashville but had lost that job. He said that he had been unable to save a ny-2-

money from his e mploy ment beca use he lived at two differ ent place s, explaining that he h ad an apartment in Nashville while his wife, mother, and five ch i l d re n l ived in Mississ ippi. Defe ndant admitted th at h e h ad not paid his fines and c ourt costs and still owed appr ox imately $2,523.50. Def endant a lso admitted that he had not worked during t he two y ear s he had been on probation and only started wor

king a bout three months prior to the he aring . Def endant’ s probation offic er informed the trial court that De fendant had not made any pay ments toward his fines and costs. At the conc lusion of the hearing, the trial court r evoked D efe ndant ’s probation, finding that he ha d failed to pa y

his court costs and f

ines as instructed and failed to maintain full-time e mploy ment.
Def endant a rg ues that the trial court err ed in r evoking his probation beca use he “ was willing to have his probation ex tended in orde r to beg in m ak i n g p ay ments.” He also arg ues that the trial c ou rt “ se e me d to bas e it s re vo c a tio n d e c isi on on the fa c t th a t [De fe nd a nt] h a d n ot w or ke d in app ro xima te ly

tw o y e ars , w hic h w a s n ot a lle g e d a s a vio la tio n in the wa

rran t is su e d a g a ins t [Defenda nt] .”
A trial court may revoke probation and or der the imposit ion of the orig inal sentenc e upon a finding by

a pre ponderance of

the evidenc e that the pe rson has violated a condition of probation. Ten n
. Co d e A n n
. § § 4 0

- 3 5

- 3 1 0 , - 3 1 1

. T h e d e c is io n to r e v o k e p r o b a ti o n r e s ts w ith in the sound d i s cr et i o n o f t he trial c ourt. Sta te v . Mitc he ll , 8 1 0 S. W. 2 d 7 3 3 , 7 3 5 ( T e n n
. Crim

. A p p
. 1 9 9 1 ). Revocation of probation is subjec t to an abuse of discretion standard of revie w, ra ther than a de novo standard. State v. Hark ins , 811 S.W .2d 79, 82 (Tenn. 1991) . Discre tion is abused only if the re cord contains no substantial evidenc e to support the conc lusion of the trial court that a vi o l at i o n of probation has oc curr ed. Id .; Sta te v . G re go ry , 946 S.W .2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation nee d not be established bey ond a re asonable doubt, and the evide nce ne ed only show t h a tt h e tr i a l j u d g e e x e r c i s e d a c o n s c i e n t i o u s a n d i n t e l l i g e n tj u d g m e n t , r a t h e r t h a n a c t i n g ar

b i tr ar i l y. Gre go ry , 94 6 S. W.2 d a t 83 2; State v. Leach , 914 S.W .2d 104, 106 (Tenn. Crim. App. 1995) . The trial co urt reta ins the discretionary authority to order the defe ndant to serve his or her origina l sentenc e in conf

inement. See State v. Hunter , 1 S.W .3d 643, 646 (Tenn. 1999)

. Ba sed on our r eview, w e conc lude that the re cord suppo rt s t h e t ri al court’s finding that Def endant violated the terms of his probation, and we , there fore , find no abuse of discretion. The tr ia l c ou rt wa s w ith in i ts dis c re tio n to re vo ke De fe nd a nt’ s pro batio n an d h a d th e statut ory a uth or ity to o rd e r D e fe nd a nt t o s e rv e his e nti re se nte nc e in c on fi ne me nt.
CO NC LU SION
After revie w, we a ffirm the judgme nt of the trial court revoking Def endant’ s probation and or de ri ng him

to s e rv e his se nte nc e in c on fi ne me nt.

___________________________________ THOMAS T. WOODAL

L , J UDGE