IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
STATE OF TENNESSEE v. AUDREY BLACK Direct Appeal from the Circuit Court for Blount County Nos. C-6528,6529,6530 D. Kelly Thomas , Judge

No. E1999-01391-CCA-R3-CD - Decided June 8, 2000

Defendant

Audrey Black pled

guilty to three counts of selling cocaine and she received concurrent sentences of nine years for each conviction

, with thirty days to b

e served in jail

and eight years and eleven months to be served in the Community Corrections Program. The trial court subsequently transferred

Defendant

from the Community Corrections Program to probation. Thereafter, the trial
c ourt rev oked Defendant ’s probation and o

rdered her to se

rve sixty days in ja

il with work relea

se eligibility, followed by the balance of her sentence on probation. Defendant contends that the trial court erred when it re

voked her probat

ion and ordered h

er to serve sixty d

ays in jail before returning to probation. The judgment of the trial court is affirmed. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W OODALL , J. delivered the opinion of the court, in which T IPTON , J. and O GLE , J. joined. Raymond Mack Garner, D istric t Public Defender, and Shawn G . Graham, Assistant Public Defender, Maryville, Tennessee, for the appellant, Orlando Malone at trial; Julie A. Rice, Knoxville, Tennessee, for

the appellant Orl

ando Malone on app

eal.

Paul G. Summers, Attorney General an d Reporter, R. Steph en Jobe, Assistant

Attorney Genera

l, Michael L. Flynn, District At torney General

, John Anderson Bo

b o, Jr., and Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION
I. BACKGROUND

On June 23, 1992, Def

endant pled guilty t

o three counts of s

ellin g cocaine. O n July 31, 1992, the trial court sentenced Defendant as a Range I standard offender to concurrent terms of nine years for each conviction, with thirty days to be served

in jail and eight ye

ars and eleven mo

nths to be served in the Community Corrections Program. On November 10, 1997, the trial court entered an order which transferred Defendant from the Community Corrections Program to probation.-2-

On January 15, 1999; March 3, 1999; and March 4, 1999; probation violation reports were fi led which al leged that Defendant had violated her probation by being convicted of DUI, using intoxicating substances, failing to seek ordered drug/alcohol treatment, failing to pay court costs, and violating curfew. On June 14, 1999, the trial court conducted a probation revocation hearing.

A t the beginning of the revocation hearing, Defendant stipulated that she had vi olated he r probation by being convicted of DUI, using intoxicating substances, failing to seek or der ed drug/alcohol treatment, failing to pay court costs, and violating curfew.

Defendant

testified that af

ter she was trans

ferred to proba

tion, she fell

behind on the payment of court costs because she had to care for ill family members. A s a result of caring for these sick relatives, Defendant experienced stress and her finances “went haywire.” On March 11, 1999, she lost her job of five and one half years due to a misunderstanding about

overtime work. Defendant also testified tha

t she had no immedia

te employment pros

pects.
Defendant testif

ied that after she

lost her job and lost

her insurance,

she failed to comp

lete
a drug and alcohol t

reatment progra

m because she wa

s not in a financia

l p o sition to pay for treatment. Defendant admitted that she had been using alcohol around the time that she committed the DUI offense. In

regard to the pro

bation violations,

Defendant testified

that she had simply been overwhelmed by dealing with her mother’s illness and subsequent death.

Defendant testified

on cross-examination that she had experienced difficulty in paying her court costs while she was still in the Community Corrections Program toward the end of 1996, and this dif ficulty resulted in the alteration of her payment schedule in order to accommodate her

. Defendant

also admitted that

she had previously been on probation for concealing stolen property. The presentence report indicates that Defendant’s period of probation for that conviction had been extended because of an allegation that she had violated probation by failing to perform

community service.

At the conclusion of the revocation hearing, the trial court found that based on Defendant’s stipulation, Defendant had v iolated the terms

of her probation. The court then noted that Defendant had performed well i

n the Comm

unity Corrections Program and she did have potential for reha bilit ation. The court then found that in the best interests of both Defendant and society, Defe n dant

should be ordered to serve sixty days in jail with work release eligibility before completing the remainder of her sentence on probation.
II. ANALYSIS

Defendant

contends that the trial court erred when it revoked her probation and ordered her to serve sixty days in jail before returning to probation. We disagree.

The circumstances upon which probation can be revoked are sp ecified in Tennessee Code Annotated section 40-35-311(e):-3-

If the trial judge sho

uldfind that the Appellant has violated the conditions of probation and suspension by a

preponderance

of the evidence, the trial judge shall have the right by order duly entered upon the minutes of the court, to revoke the probation and suspension of sentence and cause the Appellant to commence the execution of

the judgment as ori

ginally entered, or otherwise in accordance with § 40-3 5-310; pro vided, that in case of such revocation of probation and suspension, the Appellant has the right to appeal. Tenn. Code Ann. § 40-35-311(e) (Supp. 1999). The Tennessee Supreme Court has stated that under this provision: The judgment of the trial court in this regard will not be disturbed on appeal unless it appears that there has been an abuse of discretion. In order for a reviewing court to be warranted

in finding an abuse of discretion in a probation revocation case, it must be established that the record contains no substan

tial evidence to s

upport the conclu

sion of th e trial judge that a violation of the conditions o f proba tion has occurred. The proof of a probation violation neednot be es tablishe d beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a conscientious and intelligent judgment. Statev. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991) (citations omitted). Thus, “[t]he revocation of a suspended sentence is

committed to the sound judicial discretion of the trial judge, and his decision
on the matter will not be reversed on appeal unless it appears that the

trial judge has ac

ted arbitrarily in the matter.” State v. Williams on , 61 9 S.W.2d 145, 146 (Tenn. Crim. App.1981) (citations omitted).

The trial court’s decision to revoke Defendant’s proba tio n was clearly not an abuse of discretion. Indeed, Defendant stipulated that she violated her probation by being convicted of DUI, using intoxicating substan ce s, failing to seek ordered drug/alcohol treatment, failing to pay court costs, and violating curfew. This stipulation is substantial evidence to support the revocation order. Statev. Yvonne Burnette

, No. 03C01-9608-CR-00314, 1997 WL 414979, at *2 (Tenn. Crim. App., Knoxville, July 25, 1997), app. denied , (Tenn. April 13, 1998).

Defendant

argues that even

if the trial court

correctly revoked her probation, the trial court still erred when it failed to pl ace her on intensive proba

tion or place her

back in the Community Corrections Program in lieu of the sixty days of confinement. However, this Court has previ ously held that “an accused, already on probation, is not entitled to a second grant of

probation or another form of alternative punishment” after a revocation of probation. State v. Roger Dale Vance , No. 03C01-9808-CC-00317, 1999 WL 692865, at * 2 (Tenn. Crim. App., Knoxville, Aug. 31, 1999) (No Rule 11 application filed). There is no question that when a defe ndant violates the

conditions of his
or her probation, the

trial court has the

authority to revok

e probatio

n and impo se the original sentence. Tenn. Code Ann. §§ 40-35 -310 , -311 (1997 & Supp. 1999). In addition, the trial court may also “im

pose any penal ty less than or equal to that sentence originally imposed upon the probati oner.” Roger Dale Vance , 1999 WL 692865, at *2. Thus, the trial court clearly had the authority to order Defendant to serve sixty days in jail with work release eligibility followed by the remainder of the sentence on probation.

Defendant

also argues that the trial court’s order was completely arbitrary because the court failed to consider he r personal ci rcumstances. Ho wever, the rec

ord indicates tha

t in addition to-4-

considering the natur e of Defendant’s probation violations, the trial court also considered Defendant’s positive attribute s, such as her past performance in the Comm unity Corrections Program and her potential for rehabilitation. Indeed, it is obvious that the trial court’s determination tha t Defendant

should serve only s

ixty days in confine

ment, rather

than all of her remaining sentence, was based on Def

endant’s positive

characteristic

s as well as her pe

rsonal circumsta

nces.
In short, we conclude that the trial court did not abuse its discretion when it rev oke d Defendant’s probation and ordered her to

serve sixty days in jail followed by the remainder of the sentence on probation. Accordingly, the judgment of the trial court is AFFIRMED.