State v. Burl White

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 10, 1999
• Docket: 02C01-9810-CC-00322
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE, ) ) Appellee, ) C. C. A. NO. 02C01-9810-CC-00322 ) vs. ) HARDIN COUNTY

BURL A. WHITE, ) ) No. 7606 FILED ) Appellant. ) June 10, 1999

Cecil Crowson, Jr. Appellate Court Clerk ORDER

This matter is before the Court upon the state’s motion to affirm the trial

court judgment by order pursuant to Rule 20, Rules of the Court of Criminal Appeals.

The appellant is appealing the trial court’s revocation of his probation. On December 1,

1997, the appellant pled guilty to the sale of under .5 grams of cocaine and received a

three year sentence. The trial court ordered supervised probation after the appellant

served forty-five days continuous confinement. On September 17, 1998, the

appellant’s supervised probation was revoked.

After a hearing, the trial court found that the appellant violated the terms

and conditions of his probation by continuing to use cocaine while on probation and

failing to appear in court when previously ordered. The appellant and his probation

officer testified at the hearing.

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

violated a condition of probation. T.C.A. § 40-35-311(e). 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). 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 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. Gregory, 946 S.W.2d at 832; State v.

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

On appeal, the appellant contends only that the trial court abused its

discretion in revoking his probation. Having reviewed the record in light of the

appellant’s argument, we find that the evidence fully supports the trial court’s action.

The appellant has simply failed to show how the trial court abused its discretion.

Accordingly, the state’s motion is granted. It is hereby ORDERED that the

judgement of the trial court is affirmed in accordance with Rule 20, Rules of the Court of

Criminal Appeals. Costs of this appeal shall be assessed to the state.

______________________________ DAVID G. HAYES, JUDGE

______________________________ JOE G. RILEY, JUDGE

______________________________ JOHN EVERETT WILLIAMS, JUDGE