            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE                       FILED
                             JANUARY 2000 SESSION                     February 23, 2000

                                                                      Cecil Crowson, Jr.
                                                                     Appellate Court Clerk


STATE OF TENNESSEE,                  *   C.C.A. # E1999-00388-CCA-R3-CD

             Appellee,               *   BLOUNT COUNTY
VS.                                  *   Hon. D. Kelly Thomas, Jr., Judge

CHRISTOPHER GARZA,                   *   (Revocation of Probation)

             Appellant.              *




For Appellant:                           For Appellee:
Steve McEwen, Attorney                   Paul G. Summers
Grayson & Wright                         Attorney General and Reporter
410 West Main Street
Mountain City, TN 37683                  Clinton J. Morgan
(on appeal)                              Counsel for the State
                                         425 Fifth Avenue North
Mack Garner                              Nashville, TN 37243-0493
District Public Defender
Shawn Graham                             Edward P. Bailey, Jr.
Assistant District Public Defender       Assistant District Attorney General
419 High Street                          942 E. Lamar Alexander Parkway
Maryville, TN 37804                      Maryville, TN 37804
(at hearing)




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The defendant, Christopher Garza, appeals the trial court's revocation

of a sentence of probation. The single issue presented for review is whether the
trial court abused its discretion in revoking the probation.



              We find no error and affirm the judgment of the trial court.


              On January 17, 1997, the defendant entered a guilty plea to statutory

rape. Tenn. Code Ann. § 39-13-506. The trial court imposed a Range II sentence
of three years and required the defendant to serve one hundred fifty days in jail,

after which he was placed on supervised probation.



              On March 29, 1999, the state issued a warrant containing allegations

that the defendant had violated the following probationary rules:

              (1)    to work at a lawful occupation and support his
                     dependents, if any, to the best of his ability;

              (2)    to pay all required fees to the supervision and
                     criminal injuries fund unless waived by appropriate
                     authority; and

              (3)    to pay $761.50 in court costs.
The state specifically asserted that the defendant had been unemployed since

January of 1999, had not paid fees since April of 1998, and had not made any

payments towards court costs.


              Dena McCollough, a probation officer, testified that the defendant had

been terminated from his employment due to poor work habits and had paid nothing
on his fees since March of 1998. She acknowledged at the hearing in July of 1999

that since the filing of the warrant, the defendant had paid $50.00 in court costs over

a period of almost four months. Ms. McCollough stated that over a period of sixteen

or seventeen months, the defendant had held 15 or 16 different jobs.


              The defendant claimed that he had been employed with Collier Foods,

which had several different businesses in Sevier County, and instead of changing

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jobs, he had merely worked at several of their various locations during the term of

his employment. While conceding that there had been a three-month period when

he was unemployed, he explained that he had no transportation available in those
months. The defendant stated that since the filing of the probation violation warrant,

he had received a job with Dairy Mart and was being trained to become an assistant

manager. He claimed that he had received his GED since being on probation and
was planning to further his education at Pellissippi State where he would attend

classes during the day because of his night shift at work.



               On the date of the revocation, he submitted that he had $15.00

available to pay towards an arrearage of $1,431.50 in fees. The defendant

complained that he needed all the money he could spare in order to pay an
automobile loan, his rent, and the care for his grandmother, who resided with him.

The defendant argues that other than his delinquency in paying his probation fees

and court costs, he has been a "model probationer," having passed all random drug

screens and also having reported as directed to his probation officer.



               The trial court concluded that the defendant had violated his probation

by failing to pay at least part of the fees and court costs, despite the ability to do so.

The trial court also determined that the defendant had failed to maintain steady
employment and had been untruthful with his probation officer. At the conclusion of

the hearing, the trial court imposed a sentence of 16 days in jail before

reinstatement to probation. The order allowed the defendant to serve two days per
week over a period of eight consecutive weeks. The defendant was also ordered to

pay $100.00 per month for court costs and $100.00 in fee arrearages.



               The defendant insists that the proof did not establish that his failure to
pay probationary fees and court costs was willful. He argues that the trial court

failed to affirmatively find that the "alternatives to imprisonment were inadequate to

meet the state's interest . . . ."




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              When a probation revocation is challenged, this court has a limited

scope of review. If the trial judge finds by a preponderance of the evidence "that the

defendant has violated the conditions of probation," probation may be revoked.
Tenn. Code Ann. § 40-35-311(d). The decision to revoke a suspended sentence

rests within the discretion of the trial court. The Sentencing Commission Comments

to § 40-35-310 provide that "[u]pon revocation, the original sentence imposed can
be placed into effect." The determination by the trial court, if conscientiously made,

is entitled to an affirmance. The record must merely demonstrate that there is

substantial evidence to support its conclusions. State v. Delp, 614 S.W.2d 395, 398

(Tenn. Crim. App. 1980); see also State v. Williamson, 619 S.W.2d 145, 147 (Tenn.

1981). Upon appeal, the findings of the trial court are entitled to the weight of a jury

verdict. The judgment of revocation will be upheld unless there is no substantial
evidence to support those findings. State v. Wall, 909 S.W.2d 8 (Tenn. Crim. App.

1994); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).



              In our view, the trial court did not abuse its discretion. While the

defendant made a compelling case that he had taken positive steps toward a
successful rehabilitation, there were periods during which he was unemployed and

times when he had earnings yet failed to pay even minimal amounts toward court

costs and fees. The proof established his ability to work. He was able to purchase
a car during his period of probation. Moreover, the trial court fashioned a relatively

short jail term to be served in a manner allowing the defendant to continue his

employment and his education. Under these circumstances, this court cannot find
an abuse of discretion.



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge
CONCUR:



_____________________________

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Joseph M. Tipton, Judge



_____________________________
James Curwood Witt, Jr., Judge




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