             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs June 3, 2003 at Jackson

                      STATE OF TENNESSEE v. MARK MAYNARD

                       Appeal from the Circuit Court for Montgomery County
                             No. 40000466     Michael R. Jones, Judge



                      No. M2002-02466-CCA-R3-CD - Filed December 11, 2003


The defendant, Mark Steve Maynard, appeals from the Montgomery County Circuit Court’s ruling
on a probation violation warrant. On September 11, 2002, the court revoked the defendant’s October
20, 2000 probation that had resulted from four felony bad check convictions. The court ordered the
defendant to serve his original effective sentence of eight years in the Department of Correction.
Although the defendant admitted that he had violated his probation, he challenges the trial court’s
decision to require him to serve the original sentences in incarceration. Discerning no error in the
lower court’s judgment, we affirm.

                Tenn. R. App. P. 3; Judgments of the Circuit Court are Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID G. HAYES, JJ., joined.

Russel A. Church, Clarksville, Tennessee, for the Appellant, Mark Maynard.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; John
Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                    OPINION

               The defendant was originally indicted for drafting and passing worthless checks to
a motorcycle dealer in February 2000. In the aggregate, the checks exceeded $30,000 and were used
to purchase “four-wheelers,” trailers, and other equipment. He pleaded guilty and received four
felony convictions and an order to pay $8,641 in restitution,1 and an aggregate Department of
Correction sentence of eight years, to be served on supervised probation. The defendant’s probation
was transferred to New Hampshire, where the then-23-year-old defendant moved and began working


         1
          Apparently, the victim was able to repossess all the merchandise within a month of the purchases and thus was
able to mitigate the loss.
as a flooring installer. On March 5, 2002, the State of Tennessee filed a probation violation warrant,
in which it alleged that, beginning on December 19, 2001, the defendant had passed at least four
worthless checks in New Hampshire.

               On September 11, 2002, the trial court conducted a revocation hearing. The
defendant, both personally and through counsel, admitted that he had violated his probation by
writing bad checks in New Hampshire and that some of the New Hampshire charges had resulted
in convictions. The court found that the terms of probation had been violated and conducted a
hearing to determine the proper disposition of the case.

               The defendant testified that, after he had moved to New Hampshire and began
working in the seasonal occupation of installing flooring, he was hampered by an injury to his leg
and by lipoma surgery on his arm or shoulder. The leg injury was particularly costly in that it
disabled him from work for four or five months. The defendant had married, and his wife, who had
custody of a child from a former relationship, worked as a waitress in New Hampshire. Although
the defendant maintained that he used worthless checks to maintain his household, he admitted on
cross-examination that he spent large sums of money to purchase an automobile kit and items from
car hobby, race, and collectible shops.

                The trial court revoked probation in each case and ordered the defendant to serve his
original eight-year sentence. On appeal, the defendant claims that the trial court abused its discretion
in ordering that the original sentences be served in the penitentiary. He argues that the proof showed
that he was immature in his handling of money and that incarceration is not warranted.

                The standard of review upon appeal of an order revoking probation is the abuse of
discretion standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). For an abuse of discretion
to occur, the reviewing court must find that the record contains no substantial evidence to support
the conclusion of the trial judge that a violation of the terms of probation has occurred. Id. at 82;
State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The trial court is required only to find
that the violation of probation occurred by a preponderance of the evidence. Tenn. Code Ann. §
40-35-311(e) (2003). Upon finding a violation, the trial court is vested with the statutory authority
to “revoke probation and suspension of sentence and cause the defendant to commence the execution
of the judgment as originally entered.” Id. Furthermore, when probation is revoked, “the original
judgment so rendered by the trial judge shall be in full force and effect from the date of the
revocation of such suspension.” Id. § 40-35-310 (2003). The trial judge retains the discretionary
authority to order the defendant to serve the original sentence. See State v. Duke, 902 S.W.2d 424,
427 (Tenn. Crim. App. 1995).

                Although the trial court did not elaborate about its reasons for ordering the defendant
to serve the eight-year sentence in the Department of Correction, the record amply supports that
decision. Within an approximate one month period, the defendant wrote bad checks totaling over
$30,000 to buy three new “four-wheelers” and related equipment. After he bargained for probation,
he pleaded guilty, was placed on probation, and was allowed to be supervised in New Hampshire.


                                                  -2-
There, within fourteen months of being placed on probation in Tennessee, the defendant committed
a string of similar crimes in New Hampshire. He used nonexistent funds to purchase several
thousand dollars worth of novelty items that were by no means necessities and were unrelated to
household maintenance. In our view, he received the largess of probation in the first instance,
despite having passed bogus checks totaling a huge amount of money, and he responded by
continuing to offend in another state. Not only does the record reveal that the trial court acted
within its discretion in ordering confinement, but it fairly convinces us that anything but such an
order would mock of the remedy of probation.

               Accordingly, the judgements are affirmed.




                                                     ___________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




                                               -3-
