          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                             MARCH 1998 SESSION
                                                    FILED
                                                       June 4, 1998

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,                   )
                                      )   NO. 02C01-9707-CC-00236
      Appellant,                      )
                                      )   MADISON COUNTY
v.                                    )
                                      )   HONORABLE WHIT LAFON,
ERIC DEFORREST WHORTON,               )   JUDGE
                                      )
      Appellee.                       )   (Revocation of Probation)




FOR THE APPELLANT:                        FOR THE APPELLEE:

JOHN KNOX WALKUP                          CLIFFORD K. MCGOWN, JR.
Attorney General & Reporter               Attorney at Law
                                          113 North Court Square
                                          Waverly, TN 37185
                                          (Appeal Only)
KENNETH W. RUCKER
Assistant Attorney General                STEPHEN P. SPACHER
425 Fifth Avenue, North                   Assistant Public Defender
Nashville, TN 37243-0493                  227 West Baltimore Street
                                          Jackson, TN 38301
JAMES G. WOODALL                          (Trial Only)
District Attorney General
                                          OF COUNSEL:

JAMES W. THOMPSON                         GEORGE MORTON GOOGE
Assistant District Attorney General       District Public Defender
P. O. Box 2825                            227 Baltimore Street
Jackson, TN 38302-2825                    Jackson, TN 38301




OPINION FILED:________________________________


AFFIRMED


JOE G. RILEY,
JUDGE
                                  OPINION



       The appellant, State of Tennessee (state), appeals as of right from a

judgment of the trial court denying its petition to fully revoke the probation of the

defendant, Eric Deforrest Whorton. In this Court, the state contends the trial court

abused its discretion by “failing to revoke the defendant’s probation.” After a

thorough review of the record, it is the opinion of this Court that the judgment of the

trial court should be affirmed.



                                             I.



       On January 30, 1989, the defendant entered a plea of guilty to the offense

of armed robbery. The trial court sentenced the defendant to ten (10) years

pursuant to a plea agreement. On November 9, 1989, an agreed order was entered

correcting the offense to simple robbery rather than armed robbery. On the same

date the trial court suspended the defendant’s sentence and placed him on

intensive probation for the balance of his sentence.

       On June 6, 1990, a probation violation report was filed. The record is unclear

as to whether an arrest warrant was issued shortly thereafter. However, an arrest

warrant was issued on August 9, 1996, alleging the defendant absconded on or

about May 23, 1990.       Another arrest warrant was subsequently issued, and

defendant was taken into custody on January 7, 1997. The warrants essentially

alleged that the defendant absconded from supervision in 1990, failed to pay

appropriate fees and costs and did not report as ordered.

       The trial court held an evidentiary hearing on March 19, 1997. The probation

officer established that the defendant last reported on March 29, 1990.

Subsequently, the defendant left Madison County and the State of Tennessee

without permission. The defendant made no effort to contact or report to the

probation officer after leaving the state.



                                              2
Furthermore, the defendant did not pay the costs and fees which the probation

order required.

       The defendant testified during the hearing. He stated he lived with an elderly

couple. The man accused him of “messing around with his wife.” According to the

defendant, he “was scared . . . to come back here and appear before [the trial

judge] and going to jail on this, so I made a bad decision.” The defendant left the

State of Tennessee and went to Illinois. The defendant further stated he had been

convicted in Illinois of two felony thefts, served time there, and was on Illinois

probation on the date of the hearing.



                                         II.



       The ruling of the trial court is somewhat confusing since the trial judge stated

he was “going to revoke his parole here, and I’m going to give him time served and

let him go to Illinois” (emphasis added). Upon further questioning by the prosecutor,

the trial court clarified that the defendant was being placed back on probation.

Although not stated in these terms, the essence of the trial court’s ruling was that:

(1) the defendant violated the terms of his probation; (2) a partial revocation was

ordered; (3) defendant was credited with time served from the date of his arrest on

January 7, 1997, through the date of the hearing on March 19, 1997, with no other

jail time required; and (4) defendant was placed back on regular probation for the

balance of the sentence.



                                         III.



       The state contends the trial court abused its discretion and should have fully

revoked probation. 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 (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



                                           3
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. State v. Gregory, 946 S.W.2d at

832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

       Almost all appeals to this Court from probation revocations have been by

defendants.    This case is unique in that it involves an appeal by the state.

Nevertheless, the standard of review by this Court is the same. However, we note

in this case that the issue is not whether there was sufficient evidence to warrant a

revocation. Clearly, there was sufficient evidence. The trial court did, in fact,

partially revoke probation. Therefore, the real issue in this case is whether the trial

court abused its discretion in failing to order a total revocation.



                                         IV.



       The essence of the state’s argument is that the defendant received

“absolutely no punishment for his robbery conviction.” Our review of the record

indicates that the defendant was incarcerated from at least January 30, 1989, the

date of his original sentence, until November 9, 1989, the date the suspension was

granted. In addition the defendant was incarcerated from January 7, 1997, when

he was arrested on the probation violation warrant, through the date of the hearing

on March 19, 1997. The trial court apparently concluded that the partial revocation,

which recognized the time served from the date of his arrest on the probation

warrant until the date of the hearing, was a sufficient sanction under all the

circumstances. Although this Court may or may not have done the same thing, we

are not at liberty to simply substitute our judgment for that of the trial court. We

have abuse of discretion review, not de novo review. We do not find that the trial

court abused its discretion in ordering the partial revocation instead of a full

revocation.




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     The judgment of the trial court is affirmed.




                                 _____________________________________
                                 JOE G. RILEY, JUDGE




CONCUR:



_______________________________
GARY R. WADE, PRESIDING JUDGE



______________________________
JERRY L. SMITH, JUDGE




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