IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JULY 1999 SESSION
September 10, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE * C.C.A. # 02C01-9903-CC-00101
Appellee, * HENDERSON COUNTY
VS. * Honorable Roy Morgan, Jr, Judge
RICHARD SMITH, * (Probation Revocation--Sale of
Cocaine)
Appellant. *
FOR THE APPELLANT: FOR THE APPELLEE:
CLIFFORD K. McGOWN (on appeal) PAUL G. SUMMERS
113 North Court Square Attorney General & Reporter
Waverly, TN 37185
CLINTON J. MORGAN
GEORGE MORTON GOOGE (at trial) Counsel for the State
District Public Defender 425 Fifth Avenue North
Nashville, TN 37243
MICHAEL DEAN RASNAKE
Assistant Public Defender JAMES G. (JERRY) WOODALL
227 West Baltimore Street District Attorney General
Jackson, TN 38301
BILL R. MARTIN
Assistant District Attorney General
777 West Church Street
Lexington, TN 38351
OPINION FILED: _______________
AFFIRMED - RULE 20
JOHN EVERETT WILLIAMS,
Judge
OPINION
The defendant, Richard Smith, appeals a judgment from the Circuit Court
of Henderson County revoking his probation. The defendant does not contest
that he violated the terms of his probation. He argues only that the trial court
erred in fully revoking his probation. He asserts that he should have been
incarcerated for a short time and then returned to intensive probation. We
AFFIRM the judgment from the trial court.
In 1991, pursuant to a negotiated plea, the defendant was convicted of
three counts of the sale of cocaine, a Schedule II controlled substance, and was
sentenced to nine years on each count, with his sentences to run concurrently.
The trial court ordered that the defendant serve four months in jail and the
remaining eight years and eight months on community corrections. In March of
1994, however, the defendant was transferred from community corrections to
probation, as allowed by statute. See Tenn. Code Ann. § 40-36-106(e)(3)(A)
(trial court may transfer an offender from community correction to probation if
certain requirements are satisfied).
The defendant then violated his probation by acquiring new convictions,
by testing positive for use of drugs, and by absconding to Florida for
approximately two years. On June 8, 1998, the trial court revoked his probation,
sentenced him to ninety days in the county jail, and placed him on intensive
probation for the remaining balance of his original sentence.
On October 27, 1998, the defendant’s probation officer filed the instant
probation violation report, alleging that the defendant had tested positive for
marijuana or cocaine use on four separate occasions. After a hearing, the trial
court found that the defendant had violated the conditions of his probation and
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entered an order that revoked his probation and ordered him to serve his
sentence in the Department of Correction.
The defendant does not contest that he violated the terms of his
probation. He argues only that the trial court erred in fully revoking his probation.
He asserts that he should have been incarcerated for a short time and then
returned to intensive probation.
A trial court may revoke probation and order the imposition of the original
sentence upon a finding by a preponderance of the evidence that the person has
violated a condition of probation. Tenn. Code Ann. §§ 40-35-310 to -311. The
decision to revoke probation rests within the sound discretion of the trial court.
State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of
probation and a community corrections sentence is subject to an abuse of
discretion standard of review, rather than a de novo standard. State v. Harkins,
811 S.W.2d 79 (Tenn. 1991). Discretion is abused only if the record contains no
substantial evidence to support the trial court’s conclusion that a violation of
probation or community correction sentence has occurred. Id.; State v. Gregory,
946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation need not be
established beyond a reasonable doubt, and the evidence need only show that
the trial judge exercised a conscientious and intelligent judgment, and did not act
arbitrarily. Gregory, 946 S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106
(Tenn. Crim. App. 1995).
We conclude that the evidence does not preponderate against the
findings of the trial court, and we find no error of law mandating reversal.
Therefore, pursuant to Rule 20 of the Tennessee Court of Criminal Appeals, we
AFFIRM the judgment from the trial court.
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______________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
______________________________
JOSEPH M. TIPTON, Judge
______________________________
JAMES CURWOOD WITT, JR., Judge
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