         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs May 21, 2002

           STATE OF TENNESSEE v. EDWARD BUCK FRANKLIN

                 Direct Appeal from the Criminal Court for Sumner County
                    Nos. 129-2000 & 155-2000    Jane Wheatcraft, Judge



                  No. M2001-02303-CCA-R3-CD - Filed September 12, 2002


Defendant, Edward Buck Franklin, pled guilty to two counts of attempted rape and one count of
aggravated burglary. He received a sentence of three years for each conviction, with two of the
sentences to be served concurrently with each other but consecutive to the sentence for the third
conviction, for an effective sentence of six years. After receiving credit for time previously served
in jail, his sentences were suspended and he was placed on probation. Thereafter, three probation
violation warrants were filed against him. Following a hearing on the third warrant, the trial court
revoked Defendant’s probation and ordered that he serve his sentence in the Department of
Correction. We affirm the judgment of the trial court.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

David Allen Doyle, District Public Defender; and Thomas J. Smith, Assistant Public Defender,
Gallatin, Tennessee, for the appellant, Edward Buck Franklin.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Lawrence Ray Whitley, District Attorney General; and Sallie Wade Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

         The record reveals that on or about June 3, 1999, Defendant unlawfully entered the home of
the first victim of attempted rape. She was sleeping at the time. Defendant awoke her and told her
that he “was going to have her.” The victim, a martial arts expert, fended Defendant off, picked him
up, and threw him out of her apartment. Later that same evening, Defendant was in the company of
the second victim of attempted rape. Defendant tore off her dress while she begged him “not to do
this.” The second victim had a straight razor in her possession and nicked Defendant between his
legs. While he was writhing in pain, she was able to escape.
         Following his indictment by the Grand Jury of Sumner County, Defendant pled guilty on
June 5, 2000, pursuant to a negotiated plea agreement as set forth above. On January 31, 2001, the
third probation violation warrant was filed against Defendant. It is not clear from the record what
led to the filing of the first two probation violation warrants. The third warrant alleged that he had
violated a condition of his probation by moving into a residence where a minor child lived without
the probation officer’s permission and without a “chaperone agreement.” In August 2001, an
amendment to the third probation violation warrant was filed alleging that Defendant had moved
without his probation officer’s knowledge or permission in February 2001, had not reported to his
probation officer since January 30, 2001, and had not paid any fees since his probation commenced.

        At the evidentiary hearing for the probation violation warrant, as amended, the probation
officer testified that (1) she had no proof that Defendant had paid any of his probation fees; (2)
Defendant had absconded for several months; and (3) her investigation showed Defendant had
moved into a home where a minor child resided, in violation of one of the conditions of his
probation, and had admitted this to her. Defendant also testified at the hearing. He stated that he
was forced to move from a half-way house in Hendersonville, where he had been residing, because
he was wrongfully accused of using drugs. His excuse for not reporting back to his probation officer
was that he was living in Shelbyville and “figured [the probation officer] would have a warrant
signed on me.” When questioned by the trial court, Defendant admitted that he left the area because
he did not want to go to jail.

       Based upon the proof presented, the trial court found Defendant to be in violation of
conditions of his probation, revoked his probation, and ordered that he serve his sentence in the
Department of Correction. On appeal, Defendant argues that the trial court failed to exercise “a
conscientious and intelligent judgment” by finding him in violation of his probation by a
preponderance of the evidence.

        A trial court may revoke probation and order the imposition of the original sentence if it finds
by a preponderance of the evidence that the person has violated a condition of probation. Tenn.
Code Ann. §§ 40-35-310, 311 (1997). 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, 82 (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 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, rather than acting arbitrarily. Gregory, 946
S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

         After our review of the entire record, we conclude that there is substantial evidence to support
the trial court’s conclusion that a violation of probation occurred, and, therefore, the trial court did



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not abuse its discretion in revoking probation and ordering Defendant to serve his sentence in the
Department of Correction. Defendant is not entitled to relief in this appeal.

                                        CONCLUSION

       For the foregoing reasons, the judgment of the trial court is AFFIRMED.


                                                     ____________________________________
                                                     THOMAS T. WOODALL, JUDGE




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