        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                            MARCH SESSION , 1999         April 16, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,            )                   Appellate Court Clerk
                                    C.C.A. NO. 01C01-9806-CR-00238
                               )
      Appellee,                )
                               )
                               )    SUMNER COUN TY
VS.                            )
                               )    HON. JANE W. WHEATCRAFT,
MELISSA ROBERTS,               )    JUDGE
                               )
      Appe llant.              )    (Probation Revocation)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SUMNER COUNTY


FOR THE APPELLANT:                  FOR THE APPELLEE:

DANA L. SCOTT                       JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter
117 East Main Street
Gallatin, TN 37066                  GEORGIA BLYTHE FELNER
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    LAWRENCE RAY WHITLEY
                                    District Attorney General

                                    WAYNE HYATT
                                    Assistant District Attorney General
                                    113 East Main Street
                                    Gallatin, TN 37066




OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                 OPINION

        The Defenda nt, Melissa Ro berts, appea ls as of right the trial cou rt’s

revocation of her probation. She was sentenced on November 24, 1997 to four

years at thirty percent for theft of property valued over $50 0 and th eft of prope rty

valued over $1000 . The court permitted her to serve her sentence on probation,

and the conditions of her probation included being employed, paying probation

costs, m aking res titution paym ents, and reporting to her pro bation offic er.



        Defend ant’s probation officer, Taz Whitley, reported that Defendant had

violated her probation, and the trial court held a revocation hearing on May 15,

1998.    After hearing testimo ny from W hitley and Defen dant, the trial court

revoked Defendant’s probation and ordered her sente nce to be se rved in

confinement. Defendant appeals the decision of the trial court, and we affirm.



        Both the granting and denial of probation rest in the sound discretion of the

trial judge. State v. Mitch ell, 810 S.W.2d 733, 735 (Ten n. Crim. App . 1991).

Moreover, the trial judge has the d iscretiona ry authority to revoke probatio n if a

preponderance of the evidence establishes that a defendant violated the

conditions of proba tion.     The trial judge m ust, how ever, add uce su fficient

evidence during the probation revocation hearing to perm it an intelligent decision.

Id.   The determ ination mad e by the trial court, if made with conscientious

judgm ent, is given the weight of a jury verdict an d entitled to affirman ce. Stamps

v. State, 614 S.W .2d 71, 73 (T enn. Crim. A pp. 1980).




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       When a probation revocation is challenged, this Court has a limited scope

of review. Before concluding that a trial judge erred by finding a probation

violation, we must establish that the record c ontains n o subs tantial evide nce to

support the conclusion of the trial judge. State v. Harkins, 811 S.W.2d 79, 82

(Tenn. 1991). If the violation is so supported by the record, the judgment of the

trial court revoking proba tion will not be disturbed o n appeal un less it appears

that the trial cou rt acted arb itrarily or otherw ise abus ed its discre tion. State v.

Williamson, 619 S.W .2d 145, 146 (Tenn. Crim . App. 1981 ).



       In this case, we find that the reco rd does contain s ubstan tial evidenc e to

support the trial judge’s determination that Defendant violated the terms and

conditions of her probation. We further find no abuse of discretion in her decision

to revoke Defendant’s probation. Defendant testified she understood that the

conditions of her pro bation were to remain employed, pay probation fees and

court costs, pay restitution, and report to her probation officer. She admitted that

she was not employed; that she had not made any payments toward probation

fees, court costs, or restitution; and that she had failed to report to her probation

officer since December of 1997. Taz Whitley confirmed that the foregoing were

conditions of D efendant’s pro bation and tha t she had inde ed failed to com ply.



       Desp ite Defendant’s testimony that she had not obtained employment

because of her child-care commitments , that she h ad not m ade pa ymen ts

because she had n o mone y, and th at she had not reported to her probation

officer because she was ill and afraid; th e trial jud ge rev oked Defe ndan t’s

probatio n, stating,




                                          -3-
      [Defen dant] has done absolutely nothing. And at the time she was
      sentenced, it was made clear to her I expec ted her to have
      employm ent and m ake re stitution to the vic tims. T he m ost sim ple
      and elementary thing that any probationer can do is report. I can
      understand not havin g mon ey. I can understand some other
      problems, but I cannot understand why so meone would not rep ort
      in to a prob ation office r.
             Having listened to her, just by her demeanor, I have no
      reason to believe this defendant is going to ever take probation
      seriou sly or ever try and comply w ith the requ iremen ts of a
      community-based sentence, so I am going to revoke her probation
      and order that she do the time.



      W e find that a proba tion violation is well supported by the record—most

notab ly by Defendant’s own testimony. Therefore, the trial cou rt’s decision to

revoke her probation may not be overturned absent an abuse of discretion . We

conc lude th at the re vocatio n in this instan ce wa s within the proper range of the

trial judge’s discretion, rather than an abuse of her discretion.



      For the foregoing reasons, the judgment of the trial court revoking

Defendant’s probation is affirmed.




                                  ____________________________________
                                  DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
JOHN EVERETT WILLIAMS, JUDGE



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