State v. Charles Porter

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 12, 1995
• Docket: 02C01-9806-CC-00178
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

STATE OF TENNESSEE, ) ) Appellee, ) C. C. A. NO. 02C01-9806-CC-00178 ) vs.

CHARLES PORTER, ) HARDIN COUNTY ) ) No. 7035 FILED ) February 3, 1999 Appellant. ) Cecil Crowson, Jr. Appellate C ourt 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 September

1, 1993, the appellant was convicted of robbery and sentenced to four years

imprisonment. This Court affirmed on appeal. State v. Porter, No. 02C01-9310-CC-

00252 (Tenn. Crim. App., Oct. 19, 1994). On June 12, 1995, the appellant was placed

on probation. A probation violation warrant was subsequently issued.

After a hearing on the probation violation on May 14, 1998, the trial court

found that the appellant 1) failed to report to his probation officer, 2) failed to report new

arrests for possession of a weapon and possession of marijuana, 3) failed to appear in

court on these new charges, and 4) absconded from the state. The appellant, his

mother, 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 appellant.

______________________________ JOHN EVERETT WILLIAMS, JUDGE

______________________________ DAVID G. HAYES, JUDGE

______________________________ JOE G. RILEY, JUDGE