03C01-9708-CC-00323 | Tenn. Crim. App. | Dec 1, 2010
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED AT KNOXVILLE APRIL SESSION, 1998 July 9, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708-CC-00323 ) Appellee, ) ) ) BLOUNT COUNTY
VS. ) ) HON. D. KELLY THOMAS, JR. BRUCE E. WILLIAMS, ) JUDGE ) Appe llant. ) (Direct Appeal - Probation ) Revocation) FOR THE APPELLANT: FOR THE APPELLEE: MACK GARNER JOHN KNOX WALKUP Office of the Public Defender Attorney General and Reporter Fifth Judicial District 421 High Street CLINTON J. MORGAN Maryville, TN 37804 Assistant Attorney General
425 Fifth Avenu e North GERALD L. GULLEY, JR. Nashville, TN 37243 (On App eal Only) Contract Appellate Defender MIKE FLYNN P. O. Box 1708 District Attorney General Knoxville, TN 37901
EDWARD P. BAILEY, JR. Assistant District Attorney 362 Court Street Knoxville, TN 37804
ORDER FILED ________________________
AFFIRMED PURSU ANT TO RU LE 20
JERRY L. SMITH, JUDGE
ORDER
On Augu st 19, 1 996, A ppella nt, Bru ce E. W illiams, was placed on probation. As part of the probation, an electro nic m onitorin g syste m wo uld ca ll Appellant’s residence to confirm that Appellant was abiding by his curfew. On three separa te occas ions the system was unable to contact the Appellant. On February 2, 1997, Appellant was arrested for public intoxication. Again, on February 18, 1997, Appellant was arrested for driving under the influence and habitual mo tor offender.
After a review of the re cord, w e affirm the jud gme nt of the trial court pursuant to Court of Criminal Appeals Rule 20. Appellant raises two issues on appeal: (1) whether there is substantial evidence to support the trial court’s decision to revoke probation; and (2) alternatively, wheth er the tr ial cou rt shou ld have institute d an a lternativ e sentence.
“The decision to revoke probation rests with the sound discretion of the trial court.” State v. Conner, 919 S.W .2d 48, 49 (Tenn. Crim. App. 1995). Upon review of such a decision, the defendant bears the burden of proving the decision was an abu se of disc retion. State v. Leach, 914 S.W.2d 104" date_filed="1995-05-30" court="Tenn. Crim. App." case_name="State v. Leach">914 S.W.2d 104, 107 (Tenn. Crim. App. 1995). In order for an abuse of discretion to occur there must be “no substantial eviden ce to s uppo rt the co nclus ion of the trial judge that a violation of conditions of the probation has occurred. the proof of a probation violation need not be established beyond a reasonable doubt, but it is sufficient if it allows
-2- the trial judge to make a conscientious and intelligent judgm ent.” State v. Hark in, 811 S.W .2d 79, 82 (T enn. 1991 ).
There was substantial evidence to support the revocation of probation. Appellant was arrested for numerous crimes while on probation, and these arrests are substantial evidence upon which probation can be revoked. It is not the providence of the appellate court in these matters to second guess the decisions of the tria l court, o nly to ins pect th e foun dation in whic h the d ecisio n is rooted.
There is also substan tial evidence to sup port the decis ion not to in stitute alternative sentencing. “Sentences involving confinement should be based on the following conside rations: (A) Con finement is ne cessary to protect society by restraining a defendant who has a long history of criminal conduct; (B) Confinement is necessary to avoid depreciating the seriousness of the offense or confin eme nt is particu larly suited to provide an effective deterrence to others likely to comm it similar offenses; or (C) M easures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defend ant.” Tenn. Code Ann. § 40-35-103. Appe llant ha s repe atedly operated motor vehicles while intoxicated. The less restrictive measures of probation and electro nic curfew re strictions were tried an d failed . Ther efore th e trial co urt’s decision to incarcerate is fully supported.
For the above stated reasons, the decision of the tria l court is affirme d in accordance with Court of Criminal Appeals Rule 20. ____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
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PAUL G. SUMMERS, JUDGE
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