          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                           SEPTEMBE R SESSION, 1998      December 9, 1998

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
STATE OF TENNESSEE,                 )    C.C.A. NO. 01C01-9710-CR-00495
                                    )
            Appellee,               )
                                    )    SUMNER COUNTY
V.                                  )
                                    )
                                    )    HON. JANE WHEATCRAFT, JUDGE
MICHAEL BRENT COOK,                 )
                                    )
            Appe llant.             )    (BURGLARY AND VANDALISM)



FOR THE APPELLANT:                       FOR THE APPELLEE:

DAVID A. DOYLE                      JOHN KNOX WALKUP
District Public Defender                Attorney General & Reporter

ZOE LAAKSO                               CLINT ON J. M ORG AN
Assistant Public Defender                Assistant Attorney General
117 East Main Street                     2nd Floor, Cordell Hull Building
Gallatin, TN 37066                       425 Fifth Avenue North
                                         Nashville, TN 37243

                                         LAWRENCE RAY WHITLEY
                                         District Attorney General

                                         SALLIE WADE BROWN
                                         Assistant District Attorney General
                                         18th Judicial District
                                         113 West Main Street
                                         Gallatin, TN 37066




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION
       The Defendant, Michael Brent Cook, appeals as of right from the revocation

of his probation by the Sumner County Criminal Court. He contends that the trial

court abuse d its discretion in revoking his proba tion. We affirm the judgment of the

trial court.



       On June 6, 1996, Defendant pled guilty to burglary, felony vandalism, and

contrib uting to the delinquency of a minor. Defendant received an effective sentence

of two (2) years which was suspended and Defendant was placed on supervised

probation. He was ordered to pay $170 4.42 in restitution and to perform 200 hours

of comm unity service work at G allatin Midd le Scho ol. On Fe bruary 18 , 1997, a

probation violation warrant was issued alleging that Defendant had failed to report

to the probation office, had made no restitution payments , had not performed any

service work a t the sc hool, and had made no probation fee payments. An amended

affidavit and warrant were filed alleging Defendant had been convicted of burg lary

in Rutherford and Wilson counties. These felony offenses occurred while Defendant

was on probation.



       At the revocation hearing, Probation Officer Marvin Powell testified that

Defendant unde rstood his probationary obligations and that he had failed to follow

them. He said that Defendant’s records indicated that Defendant made no restitution

or probation fee p ayments.     H e testified that Defend ant’s public service w ork

coordinator, Larry Johnson, reported that Defendant had not performed any work at

the school. Furthermore, Powell testified that Defendant had been convicted of

burglary in two different counties, just six months after being placed on probation.

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Pow ell admitted that Defendant had report ed to h im on a mo nthly ba sis up u ntil

November 22, 1996, an d that Defend ant’s incarcera tion for the burglaries on

December 2, 1996, would explain Defendant’s non-compliance after that date.



       Defendant testified at the hearing that he had failed to report to his probation

officer after November 22, 1996, because he had been incarcerated for the burglary

convictions. Defendant said that he was paying on his restitution and th at the c lerk’s

office should h ave a rec ord of it. He a lso testified th at he wo rked at the Ga llatin

Middle Scho ol four to six weekends for five or six hours each time. He said the

school principal was supposed to report his work to the probation office.                 He

admitted getting intoxicated, which would also be a violation of his probation, and

committing the burglaries.      He testified that since being in jail for the burglary

convictions he has been working on getting his GED and that he has a new outlook

on life.



       A trial cou rt may revoke proba tion an d orde r the im positio n of the original

sentence upon a finding by a preponderance of the evidence that the person has

violated a cond ition of probation. Tenn. Code Ann. §§ 40-35-310 and -311. The

decision to revoke proba tion res ts within the soun d discretio n of the trial co urt. State

v. Mitche ll, 810 S.W.2d 733, 735 (Ten n. Crim. App . 1991). Probation revocations

are subject to an ab use of discretion, ra ther than a de novo standard of review.

State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of discretion is shown

if the record is devoid of substantial evidence to support the conclusion tha t a

violation of proba tion has o ccurred . Id. The evidence at the revocation hearing

need only show that the trial court exercised a conscientious and intelligent judgment

in makin g its decisio n. State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App.

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1995). Once it is determined that a defenda nt has violated his pro bation, the court

has the discretion to order the defen dant to begin serving his sen tence as orig inally

entered. Tenn . Cod e Ann . §§ 40 -35-3 10 an d -311 (d); Se ntenc ing Co mm ission

Com ments to Tenn. Code Ann. § 4 0-35-31 0; State v. Duke, 902 S.W.2d 424, 427

(Tenn . Crim. A pp. 199 5).



      Defendant admitted at the hearing that he violated the terms of his probation

by getting intoxicated and committing two felonies. This constitutes substantial

evidence to support the trial court ’s revoc ation order. See, e.g., State v. Yvonne

Burne tt, C.C.A. No. 03C01-9608-CR-00314, Knox County (Tenn. Crim. App.

Knoxville, July 25, 19 97) (R ule 11 application denied, Apr. 13, 1998). Furthermore,

Defe ndan t’s probation officer testified that D efendant ha d made no restitution or

probation fee paym ents and th at his public service wo rk coordinator ha d no record

of any co mm unity se rvice performed by Defendant.            Defendant testified that

“[s]omebody messed up somewhere” in regards to there being no rec ord as to his

comm unity service work. However, in its findings of fact, the trial court accredited

the testim ony of th e State ’s witness a s to the disputed facts in this case and revoked

Defe ndan t’s probation. The lower court was then statutorily authorized to impose

Defe ndan t’s original two (2) year sentence upon re vocation of proba tion. See Tenn.

Code Ann. §§ 40-35-310 and -311. We cannot say th at the trial cou rt abuse d its

discretion in ordering Defendant to serve the terms of his original sentence.




                                           -4-
    Accordingly, the judgment of the trial court is affirmed.



                              ____________________________________
                              THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JAMES CURW OOD W ITT, JR., Judge




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