        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                       SEPTEMBE R SESSION, 1997

                                                              FILED
STATE OF TENNESSEE,   )           C.C.A. NO. 02C01-9610-CC-00361
                      )                                  October 9, 1997
    Appellee,         )
                      )                                       Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk
                      )           MADISON COUNTY
VS.                   )
                      )           HON. WHIT LAFON
MICHAEL ANTHONY COLE, )           JUDGE
                      )
    Appe llant.       )           (Revocation of Community Corrections)


               ON APPEAL FROM THE JUDGMENT OF THE
                CIRCUIT COURT OF MADISON COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

C. MICHAEL ROBBINS                JOHN KNOX WALKUP
202 S. Maple Street, Suite C      Attorney General and Reporter
Covington, TN 38019
                                  JANIS L. TURNER
GEORGE MORTON GOOGE               Assistant Attorney General
District Public Defender          425 5th Avenu e North
227 West Baltimore Street         Nashville, TN 37243
Jackson, TN 30301
                                  JERRY W OODALL
                                  District Attorney General

                                  JAMES W. THOMPSON
                                  Assistant District Attorney General
                                  Lowell Thomas State Office Building
                                  Jackson, TN 38301



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                        OPINION

         The Defendant, Michael Anthony Cole, appeals as of right th e trial co urt’s

revocation of his sentence to community corrections. The Defendant pleaded

guilty to one count of felony theft o f property o ver $10,0 00, a Class C felony, for

stealing a Chevrolet pickup truck.1 He was sente nced to six (6) years, w ith sixty

(60) days to be served in the workhouse and the balance of five (5) years and ten

(10) mon ths to b e serve d in community corrections. He was fined one hundred

dollars ($100 ), orde red to p ay one hund red eig hty dolla rs ($18 0) in restitution and

provide 250 hours of community service. He was also ordered to stay away from

the victim’s busin ess. In his one issue in this appeal, he contends that the trial

judge abus ed his discre tion in revoking his sentence to community corrections.

We affirm the ju dgme nt of the trial co urt.



         The trial court has the discretion to revoke a community corrections

sentence upon a finding that the defendant has violated the conditions of the

agreem ent; the trial court may then order the defen dant to serve h is sent ence in

confinem ent. State v. Harkins, 811 S.W .2d 79, 82 (T enn. 1991 ). However,

before a trial court may revo ke a com munity correc tions sentence , the record

must contain sufficient evidence to permit the trial court to make an intelligent and

conscientious decision. Id. When revoking a community corrections sentence,

the trial court m ust place its findings of fact and the reasons for the revocation on

the record. See Gag non v. S carpe lli, 411 U.S . 778, 786 , 93 S.C t. 1756, 1762, 36

L.Ed.2d 656 (19 73).



1
    Tenn. Code A nn. §§ 39-14-103, -105(4).

                                              -2-
       The Tennessee Supreme Court has held that an abuse of discretion

standard of appellate review s hould b e used to addre ss the rev ocation o f a

comm unity correction s senten ce. Harkins, 811 S.W .2d at 82. In order for a

reviewing court to be warranted in finding an abus e of dis cretion in a com munity

corrections revocatio n case , it must be established that the record contains no

substantial evidence to support the conclusion of the trial judge that the

defendant violated the terms of the community corrections p rogram . Id. The

proof of a violation of community corrections need not be established beyond a

reaso nable doubt, but by a preponderance of the evidence, and it is sufficient if

it allows the trial judge to make a conscientious and intelligent de cision. Id.; State

v. Milton, 673 S.W .2d 555, 557 (Tenn. Crim . App. 1984 ).



       If the evidence at the revocation proceeding is insufficient to establish that

a violation occurred, the trial court should dism iss the procee ding. Conve rsely,

if the evid ence is sufficie nt, the tria l court m ay, with in its discretionary autho rity,

revoke the sentence and re quire th e acc used to serve the se ntenc e in

confinem ent. See Tenn . Code Ann. § 4 0-36-10 6(e)(3).



       The Defendant’s primary argument is that the State failed to produce any

substantial evidenc e to supp ort the trial cou rt’s revocatio n of com munity

corrections. The re cord reflec ts that the State submitted a behavioral violation

report and the testim ony of M ickey Kin g, the De fendan t’s Case Officer with

Madison Coun ty Com mun ity Corre ctions. In the report, King indicated that the

Defendant violated several rules governing his sentence:




                                             -3-
            2. Make a full and truthful report to program staff in person
      and/or in writing as directed.
            5. Report all arrest [sic], including traffic citations, regardless of
      disposition.
            7. Obey the laws of the United States or any State in which
      he/she may be as will [sic] as any municipal ordinances.
            8. Abide by curfew times as set by program staff and shall not
      keep late or unusual hours unless employment related.
            10. Be liable for all Court C ost payments and Supervision Fee
      payable m onthly.




      King produced police arrest report s and testified that the Defe ndan t did not

report to him regard ing any of the arres ts. Those arre sts docum ented were two

for violation of the bad check law on January 9, 1996 and March 19, 1996. The

Defendant was also arres ted for van dalism o n Marc h 15, 19 96. The report and

testimony clearly supports a violation of Rule 5. Also, the police report indicates

that the vandalism incident occurred after 10:00 p.m. and King testified that the

Defendant had a cu rfew of 6:0 0 p.m.         This supports the finding that the

Defendant violated Rule 8.



      The Defendant also claims that the finding of nonpayment of court costs

was based on vague information and that no due date existed for payments.

Howeve r, the violation report indic ates pa ymen ts were to be “payable month ly.”

The Defen dant wa s senten ced on Decem ber 13, 1 995, and the revocation

hearing was conducted on May 14, 1996.           No payment had been made in

monthly installments as required. Finally, the Defendant argues that no proof

was offered regarding Rules 2 and 7. However, the trial court’s revocation order

dated May 16, 1996, reflects that the revocation was based on his arrests and the

failure to pay court costs. Thus, the lack of sufficient proof regarding these

violations is of no consequence in considering the trial court’s decision.

                                        -4-
       The Defendant offered explanations that he was incarcerated for a number

of months, but produced no proof of such. He also testified that he was at home

at the time the alleged curfew violation occu rred an d that h is mo ther sto le his

disability check, making him unable to pay the costs.



       The trial court considered the report and the testimony of both th e State ’s

witness and Defendant. The trial court determined that the State had met its

burden of producing evidence that the De fenda nt violate d the ru les go vernin g his

community correc tions s enten ce. Alth ough the trial c ourt did not exp ound in

detail its findings of fact in its order revoking community corrections, it is apparent

from the record that substantial evidence existed such that the trial court cou ld

make a conscientious and intelligent decision that the Defendant violated the

required conditions. The trial court specified in its order that the new arrests and

the failure to pay court costs were evidence of the violation s. The re cord reflec ts

that the Defendant failed to notify King of the arrests. We cannot conclude that

the trial judge abused his discretion in finding that the Defendant failed to meet

the condition s of his sen tence, thus warranting revoc ation. According ly, we affirm

the judgm ent of the tria l court.




                                     ____________________________________
                                     DAVID H. WELLES, JUDGE




                                          -5-
CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




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