         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 3, 2006

               STATE OF TENNESSEE v. EFREM IRA McCORY,
                         aka EFREM HAMPTON

                  Direct Appeal from the Circuit Court for Madison County
                           No. 02-375    Donald H. Allen, Judge



                    No. W2006-00034-CCA-R3-CD - Filed January 5, 2007


Following a revocation hearing, the trial court revoked the probation of Defendant, Efrem Ira
McCory, and ordered him to serve his two-year sentence in confinement. In his appeal, Defendant
argues that the trial court abused its discretion in revoking his probation. After a review of this
matter, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and ROBERT
W. WEDEMEYER , JJ., joined.

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant Public Defender,
for the appellant, Efrem Ira McCory, aka Efrem Hampton.

Robert E. Cooper, Jr., Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On February 12, 2003, Defendant pled guilty to possession of marijuana with intent to sell,
a Class E felony. He was sentenced as a Range I, standard offender to two years, all suspended, and
placed on intensive supervised probation. As part of the terms of his probation, Defendant agreed
to pay his fines and court costs at the rate of $100 per month, beginning May 1, 2003; submit to
random drug screens; obtain an alcohol and drug assessment; and maintain full-time employment.

         On February 9, 2005, a probation violation warrant was issued alleging that Defendant had
failed to pay his fines and court costs as instructed by the court. A probation revocation hearing was
held on December 5, 2005, at which Defendant testified that he had been working for a few months
at Quality Industry in Nashville but had lost that job. He said that he had been unable to save any
money from his employment because he lived at two different places, explaining that he had an
apartment in Nashville while his wife, mother, and five children lived in Mississippi. Defendant
admitted that he had not paid his fines and court costs and still owed approximately $2,523.50.
Defendant also admitted that he had not worked during the two years he had been on probation and
only started working about three months prior to the hearing. Defendant’s probation officer
informed the trial court that Defendant had not made any payments toward his fines and costs. At
the conclusion of the hearing, the trial court revoked Defendant’s probation, finding that he had
failed to pay his court costs and fines as instructed and failed to maintain full-time employment.

       Defendant argues that the trial court erred in revoking his probation because he “was willing
to have his probation extended in order to begin making payments.” He also argues that the trial
court “seemed to base its revocation decision on the fact that [Defendant] had not worked in
approximately two years, which was not alleged as a violation in the warrant issued against
[Defendant].”

        A trial court may revoke probation and order the imposition of the original sentence upon a
finding by a preponderance of the evidence that the person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310, -311. 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 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 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). The
trial court retains the discretionary authority to order the defendant to serve his or her original
sentence in confinement. See State v. Hunter, 1 S.W.3d 643, 646 (Tenn. 1999).

        Based on our review, we conclude that the record supports the trial court’s finding that
Defendant violated the terms of his probation, and we, therefore, find no abuse of discretion. The
trial court was within its discretion to revoke Defendant’s probation and had the statutory authority
to order Defendant to serve his entire sentence in confinement.

                                          CONCLUSION

       After review, we affirm the judgment of the trial court revoking Defendant’s probation and
ordering him to serve his sentence in confinement.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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