         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON
                                                      FILED
                          JANUARY 1998 SESSION
                                                      February 12, 1998

                                                     Cecil Crowson, Jr.
STATE OF TENNESSEE,                   )               Appellate C ourt Clerk
                                      )   NO. 02C01-9705-CC-00163
      Appellee,                       )
                                      )   MADISON COUNTY
VS.                                   )
                                      )   HON. FRANKLIN MURCHISON,
STEVEN CULPS,                         )   JUDGE
                                      )
      Appellant.                      )   (Probation Revocation)



FOR THE APPELLANT:                        FOR THE APPELLEE:

GEORGE MORTON GOOGE                       JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

VANESSA D. KING                           CLINTON J. MORGAN
(at trial and of counsel on appeal)       Assistant Attorney General
Assistant Public Defender                 Cordell Hull Building, 2nd Floor
227 West Baltimore                        425 Fifth Avenue North
Jackson, TN 38301-6137                    Nashville, TN 37243-0493

GREGORY D. SMITH                          JERRY WOODALL
(on appeal)                               District Attorney General
Contract Appellate Defender
One Public Sq., Suite 321                 DONALD H. ALLEN
Clarksville, TN 37040                     Assistant District Attorney General
                                          225 Martin Luther King Dr.
                                          P.O. Box 2825
                                          Jackson, TN 38302-2825




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       The defendant, Steven Culps, appeals the Madison County Circuit Court's

order revoking his probation. The sole issue presented for review is whether the

trial court erred in revoking his probation. The judgment of the trial court is

affirmed.



                             PROCEDURAL HISTORY



       The defendant pled guilty in October 1994 to aggravated burglary and

theft of property under $500. He was sentenced to intensive probation for six (6)

years and eleven (11) months twenty-nine (29) days for these offenses,

respectively. The sentences were to run concurrently.

        In January, February and March of 1995, the defendant tested positive

for cocaine use. In April 1995, the defendant stopped making required weekly

visits to his probation officer. In December 1996, a probation violation report was

filed by the defendant’s probation officer.

       On January 1, 1997, the defendant was arrested and charged with driving

under the influence, driving on a revoked license, and violating the open

container and seatbelt laws. He subsequently pled guilty to these charges. By

virtue of the time of day the defendant was arrested, he was also in violation of

the curfew provision of his probation.

       After a hearing on January 10, 1997, the trial court noted the defendant’s

failure to report, his illicit use of drugs, and his conviction for driving under the

influence. The trial court then revoked the defendant’s probation.



                              STANDARD OF REVIEW



       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


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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). Probation

revocations are subject to an abuse of discretion, rather than a de novo standard

of review. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). An abuse of

discretion is shown if the record is devoid of substantial evidence to support the

conclusion that a violation of probation has occurred. Id. The evidence at the

revocation hearing need only show that the trial court exercised a conscientious

and intelligent judgment in making its decision. State v. Leach, 914 S.W.2d 104,

106 (Tenn. Crim. App. 1995).



                         REVOCATION OF PROBATION



       The defendant contends the trial court erred in revoking his probation.

The primary basis of this claim is that, because of the defendant’s poor health,

the trial court should have ordered only a short jail term followed again by

probation. The trial court recognized the defendant’s health problems and noted

on the order that the sentence should be served at a special needs prison.

       As stated above, this Court’s standard of review of probation revocation is

abuse of discretion, not de novo. The record reveals substantial evidence that

the defendant violated the terms of his probation; therefore, this Court will not

disturb the judgment of the court below.



       The judgment of the trial court is affirmed.




                                           ______________________________
                                           JOE G. RILEY, JUDGE




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CONCUR:



______________________________
JOE B. JONES, PRESIDING JUDGE



______________________________
PAUL G. SUMMERS, JUDGE




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