State v. Charles Porter

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
STATE OF TENNESSEE, )
)
Appellee, ) C. C. A. NO. 02C01-9806-CC-00178
)
vs.
CHARLES PORTER,
) HARDIN COUNTY
)
) No. 7035
FILED
) February 3, 1999
Appellant. )
Cecil Crowson, Jr.
Appellate C ourt Clerk
ORDER
This matter is before the Court upon the state’s motion to affirm the trial
court judgment by order pursuant to Rule 20, Rules of the Court of Criminal Appeals.
The appellant is appealing the trial court’s revocation of his probation. On September
1, 1993, the appellant was convicted of robbery and sentenced to four years
imprisonment. This Court affirmed on appeal. State v. Porter, No. 02C01-9310-CC-
00252 (Tenn. Crim. App., Oct. 19, 1994). On June 12, 1995, the appellant was placed
on probation. A probation violation warrant was subsequently issued.
After a hearing on the probation violation on May 14, 1998, the trial court
found that the appellant 1) failed to report to his probation officer, 2) failed to report new
arrests for possession of a weapon and possession of marijuana, 3) failed to appear in
court on these new charges, and 4) absconded from the state. The appellant, his
mother, and his probation officer testified at the hearing.
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. T.C.A. § 40-35-311(e). 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 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 conclusion of the trial court that a violation of
probation 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, rather than acting arbitrarily. Gregory, 946 S.W.2d at 832; State v.
Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).
On appeal, the appellant contends only that the trial court abused its
discretion in revoking his probation. Having reviewed the record in light of the
appellant’s argument, we find that the evidence fully supports the trial court’s action.
The appellant has simply failed to show how the trial court abused its discretion.
Accordingly, the state’s motion is granted. It is hereby ORDERED that the
judgement of the trial court is affirmed in accordance with Rule 20, Rules of the Court of
Criminal Appeals. Costs of this appeal shall be assessed to the appellant.
______________________________
JOHN EVERETT WILLIAMS, JUDGE
______________________________
DAVID G. HAYES, JUDGE
______________________________
JOE G. RILEY, JUDGE
2