        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs September 28, 2011

               STATE OF TENNESSEE v. SHERRI A. ELLIOTT

               Direct Appeal from the Circuit Court for Blount County
                     No. C-18042       David R. Duggan, Judge




                No. E2011-00512-CCA-R3-CD - Filed January 3, 2012


The defendant, Sherri A. Elliott, appeals the trial court’s revocation of her probation. On
appeal, she argues that the trial court abused its discretion in ordering her to serve eight
months of split confinement. After review, we affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS, J R. and
C AMILLE R. M CM ULLEN, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal); and Mack Garner, District Public
Defender (at hearing), for the appellant, Sherri A. Elliott.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Matthew Dunn, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                          FACTS

       On July 6, 2009, the defendant, Sherri A. Elliott, pleaded guilty to promotion of
methamphetamine manufacture, a Class D felony, and possession of a Schedule II controlled
substance, a Class A misdemeanor. The trial court sentenced her to three years with six
months of split confinement and the remainder on supervised probation. A probation
violation warrant was filed on June 29, 2010, alleging that the defendant had been arrested
and charged with promotion of methamphetamine manufacture and reckless endangerment
on or about June 21, 2010, failed to report the arrest to her probation officer, possessed
narcotic drugs, and failed to show proof of payment toward court costs. The court held a
probation revocation hearing, after which it revoked the defendant’s probation and ordered
her to serve a sentence of split confinement with eight months of incarceration and the
remainder on intensive probation.

       At the revocation hearing, Kelly Andrews, the defendant’s probation officer, testified
that the defendant was placed on probation on August 17, 2009. She stated that the
defendant did not report her June 21, 2010 arrest as required. In December 2010, the
defendant entered a best interest plea for possession of drug paraphernalia based on those
charges. Andrews further testified that the defendant was behind in her court costs and
probation fees. The defendant had paid $15 toward her court costs and fines and had a
$3,606.50 balance. She was approximately $200 behind in her probation fees.

       On cross-examination, Andrews testified that the defendant reported for her probation
appointments as required and that the defendant’s living arrangements were satisfactory. She
further testified that the defendant had not yet completed her drug and alcohol assessments
because the employee who performed them was behind and that the defendant had worked
sporadically, but had not yet found permanent, full-time employment.

       The defendant did not testify at the hearing; however, she submitted letters from her
employer and her mother. In his letter, the defendant’s employer stated that the defendant
was an important employee who he did not want to lose. The defendant’s mother stated that
the defendant helped her and her husband manage their apartment complex, and it would
cause them a hardship if the defendant were incarcerated.

                                         ANALYSIS

      On appeal, the defendant argues that the trial court erred in revoking her probation
because “though the State proved that the Defendant had engaged in the crime of
misdemeanor simple possession . . . and was behind on payments of costs and fees,” she was
otherwise doing well on probation.

        A trial court is granted broad authority to revoke a suspended sentence and to reinstate
the original sentence if it finds by the preponderance of the evidence that the defendant has
violated the terms of his or her probation and suspension of sentence. Tenn. Code Ann. §§
40-35-310, -311. When the defendant’s violation of probation is based on failure to pay
restitution or fines, the trial court must determine the reasons behind the failure to pay. State
v. Dye, 715 S.W.2d 36, 40 (Tenn. 1986). If the court finds the nonpayment results from



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either the defendant’s willful refusal to pay or failure to make bona fide efforts to obtain the
means to pay, the defendant’s probation may be revoked. Id.

         The revocation of probation lies within the sound discretion of the trial court. State
v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997); State v.
Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). To show an abuse of discretion in
a probation revocation case, “a defendant must demonstrate ‘that the record contains no
substantial evidence to support the conclusion of the trial judge that a violation of the
conditions of probation has occurred.’” State v. Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App.
1994) (quoting State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). The proof of
a probation violation need not be established beyond a reasonable doubt, but it is sufficient
if it allows the trial court to make a conscientious and intelligent judgment. Harkins, 811
S.W.2d at 82 (citing State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)).

       In revoking the defendant’s probation, the trial court found that the defendant had
engaged in material violations of her probation based on her failure to report her arrest, her
conviction for possession of drug paraphernalia, and her failure to pay her court costs and
probation fees. The court noted that the defendant had “previously served a six-month split
confinement on the underlying plea which apparently failed to get her attention.”

        The record shows that the defendant failed to report her arrest and charges as required
by the terms of her probation agreement. The defendant pleaded guilty to the lesser-included
offense of those charges resulting in a conviction violating the terms of her probation
agreement. Finally, the defendant had only paid $15 toward her court costs fees causing her
to fall behind in payments and violate her probation agreement. Given this evidence, we
cannot conclude that the trial court abused its discretion in finding that the defendant violated
her probation and sentencing her to eight months split confinement followed by intensive
probation.

                                       CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the trial court’s
revocation of the defendant’s probation.




                                                     ___________________________________
                                                     ALAN E. GLENN, JUDGE



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