        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE            FILED
                       NOVEMB ER SESSION, 1997       January 9, 1998

                                                  Cecil W. Crowson
STATE OF TENNESSEE,         )                   Appellate Court Clerk
                                 C.C.A. NO. 01C01-9612-CC-00504
                            )
      Appellee,             )
                            )
                            )    COFFEE COUNTY
VS.                         )
                            )    HON. GERALD L. EWELL, SR.
ANTHONY TURNER,             )    JUDGE
                            )
      Appe llant.           )    (Revocation of Community Corrections)


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


FOR THE APPELLANT:               FOR THE APPELLEE:

CAMPBELL SMOOT                   JOHN KNOX WALKUP
Public Defender                  Attorney General and Reporter

RAC HEL E . WIL LIS              GEORGIA BLYTHE FELNER
Assistant Public Defender        Assistant Attorney General
605 East Carroll Street          425 5th Avenu e North
P.O. Box 260                     Nashville, TN 37243
Tullahoma, TN 37388
                                 C. MICHAEL LAYNE
                                 District Attorney General

                                 STEPHEN WEITZMAN
                                 Assistant District Attorney General
                                 Manchester, TN 37355



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                            OPINION

           The Defendant appeals as of right from the judg ment of the trial cou rt

which found him to be in violation of the terms of his community corrections

sentence and ordered that the balan ce of h is six-year sentence be served in the

Department of Correction. The Defendant argues that the trial ju dge a buse d his

discretion in ordering that the remainder of the Defendant’s sentence be served

in the Department of Correction. We disagree and affirm the judgment of the trial

court.



           On March 20, 1996, the Defendant pleaded guilty to the Class C felony

offense of selling less than ½ gram of cocaine.1 He was sentenced as a Range

I standard offender to a term of six years to be serv ed in the c omm unity

correction s progra m.



           On April 3, 1996, about two weeks after bein g placed in the com munity

corrections program , the Defe ndant w as arres ted two separa te times for

disord erly conduct. Th ese arrests res ulted in a warrant being issued charging

him with violating the terms of his community corrections sentence.                                           After

conducting an evidentiary hearing, the trial judge revoked the Defendant’s

community correction s senten ce and ordered that the ba lance of th e sente nce

be served in the Department of Correction.2 It is from the order of the trial cou rt




1
    Tenn. Code A nn. § 39-17-417(c)(2).

2
The Def end ant w as giv en cr edit fo r 142 days s pen t in jail a nd fo r 17 d ays s pen t in co mm unity
corrections.

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revoking the community corrections sentence and ordering the balance of the

sentence served in the Department of Correction that the Defendant appeals.



      The trial court has the discretion to revoke a community corrections

sentence upon a finding that the defendan t has violated the conditions of the

agreem ent; the trial court m ay then o rder the d efenda nt to serve h is sent ence in

confinem ent. State v. Harkins, 811 S.W .2d 79, 82 (Tenn . 1991). How ever,

before a trial court m ay revoke a com munity c orrection s sente nce, 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 must 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.Ct. 1756, 1762, 36

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



      The Tennessee Supreme Court has held that an abuse of discretion

standard of appellate review sh ould be used to a ddress the revoc ation of a

comm unity correc tions sentence. Harkins, 811 S.W .2d at 82. In order for a

reviewing court to be warranted in finding an abuse of discretion in a revocation

proceeding, it must be established that the record contains no substantial

evidenc e to support the conclusion of the trial judge that the defendant violated

the terms of the community corrections program. Id. The proof of a violation of

comm unity corrections need n ot be esta blished b eyond a reason able do ubt, but

it is sufficient if it allows the trial judge to make a conscientious and intelligent

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




                                          -3-
       If the evidence at the revocation proceeding is insufficient to establish that

a violation occurred, the trial court should dismiss the proceed ing. Converse ly,

if the evide nce is su fficient, the trial ju dge m ay, with in his discretionary auth ority,

revoke the sentence and req uire the a ccus ed to s erve th e sen tence in

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



       The testimony presented at the revocation hearing centered around the

Defe ndan t’s activity between approximately 1:00 a.m. and 6:00 a .m. on April 3,

1996. Testimony established that about 1:00 a.m. on that date the Defendant

went to the apa rtment o f his girlfriend, with whom he had been staying. The

Defendant had been drinking and an argument or altercation started. The police

were then called for the first time that evening, but apparently the Defendant was

not there when the police arrived. After the police departed, the Defendant came

back to the apartment and the police were ag ain sum mone d. When they arrived

this time, the Defendant was not there, but he came in while the police were

there. The Defendant’s girlfriend asked him to leave her apartment and the

police also asked h im to leave the ap artment. Th e Defend ant refused to lea ve

and “became disorderly” and was arrested. The Defendant was ta ken to jail, but

appa rently made bond and returned to the sam e apartm ent som etime p rior to

6:00 a.m. on the sam e day. H e gain ed en trance to the a partm ent, an d his

girlfriend, who testified that she was afraid of him that morning, jumped out of the

window of her secon d floor apartme nt to try to get away from the De fendan t.

When she jumped, she broke her leg. The police were again called to the

apartment.     An ambulance arrived to transport the Defendant’s girlfriend for

treatment of her bro ken leg. The Defendant again approached his girlfriend and

the police officer who was the re with he r. He wa s asked to leave. He refused,

                                             -4-
got loud, and u sed profanity. Several peop le had gathe red an d the o fficer sa id

he was afraid the Defendant was going to interfere with the ambulance

attendants, so the officer arrested him on a charge of disorderly conduct. The

Defe ndan t’s girlfriend testified that the only time s he rea lly had problems with the

Defen dant wa s when he had been d rinking.



       After hearing this testimony, the trial judge took the matter under

advisement but stated, “this ma y have been a minor situation, but he persisted

in it, went into the apartment, caused this young lady -- this woman to jump out

of the apartment, break her leg . . . . I will look a t the rec ord, bu t he ha d this

[alcoh ol] problem when he went on commu nity corrections and I am not

convinced that ordering anything other than a full revocation will help him.” The

judge subseque ntly entere d a orde r revoking the Defe ndant’s c omm unity

corrections sentence.



       W e believe that this record contains substantial evide nce to su pport a

finding that the D efenda nt violated the terms of his community corrections

sentence.    We also believe the record contains sufficient evidence which

permitted the trial court to make an intelligent and conscientious decision. Based

on the evidence, we believe that it was within the discretionary authority of the

trial judge to revoke the Defendant’s sentence and require the Defenda nt to serve

the sentence in the Department of Correction. We cannot conclude that the trial

judge abused his discretion.



       The judgment of the trial court is accordingly affirmed.




                                          -5-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




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