### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecem

ber 10, 200 2 STATE OF TENNESSEE v. VICKI E SWIFT Appeal from the Circuit Court for Blount County No. C-11728 D. Kelly Thomas, Jr., Judge

No. E2002-01093-CCA-R3-CD March 18, 2003 Th e defendant, Vickie Swift, was convicted of one count of the ft over $1000. The trial cour t imposed a sentenceof three y ears to be served on proba tion. L ater, pr

obation w as revok

ed. I n this appeal, the defendant asser ts that the trial court erred by revoking her probation and ordering her incarcerated for the balanc e of her sentence.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed G ARY R. W ADE , P.J., delivered the opinion of the court, in which J ERRY L. S MITH and J AMES C URWOOD W ITT , J R ., JJ., joined. Mack Ga rner, D istrict Pub lic Defe nder, fo r the app ellant, Vickie Swif t. Paul G. Summers , Attorne y General & Reporter; Peter M. Coughlan, Assistant Attorney Genera l; and Edward P. Bailey , Jr., Assistant District Attorney General, f or the appellee, State of Tennessee.

OPINION On October

18, 1999, t

he defe ndant ple d guilty

to th eft of

property va

lued at greater than $1000. The trial court imposed a sentence of three ye ars to be served on supervised probation. In December

1999, a probation violation report was filed after the defe ndant tested positive for cocaine and failed to enroll in a drug treatment prog ram. One month later, a second violation report was filed when the defendant, who had been arre sted for pro sti tution, failed to report that arrest to her probation officer. In October 2000, the trial court revoked the defendant' s probation and ordered her to serve thirty day s in jail. Ten days afte r being released from jail, the defenda nt was arrested for public intoxication. She was a rrested twice in A

pril 2001 for a

lcohol re lated of fenses a nd faile d to complete a drug and alco hol abuse treatme nt progr am. At the hearing , t he defendant admitted her arrests for pr ostitution and public intoxication. She explained that the public intoxication convictions were the result of depression. The defendant-2-

claimedthat after her father's de ath, she quit taking her medication and "turn[ed] to alcohol." She contended

that s he fail ed to a ttend alcoh ol and drug t reatmen t class es beca

use she ha

d surge ry to remove part of her lung and had been in the hospital for eleven day s. The defendant also attempted to excuse her violations by pointing out that she ha d pleurisy and suffe

red from bipolar disorder. She askedthat she be allowed to remain on probation so that she coul d take care of her fiancé , who suffered from several medical problems. While acknowledging that she remained in the company of other prostitutes, the defendant argue d that she

was "too sick to be

in jail" and promised to take her medi cations a

nd refr ain from t he use of alcohol a nd drug s. Sue Littlejohn, the defendant's probation officer, testified that while the defendant had made someprogres s, sh e was "v ery diffic ult t o supe rvise ." It was h er opi nion that t he defe ndant 's continued criminal activity had a de bilitating effect on

her fiancé. Ms. Littlejohn explained that the defendant had "significant psy chological problems." The trial court revoked the defendant' s probation, finding that although "[t]here's no question that [the defen dant] would benefit from treatment, . . . her inability to follow treatment recomme ndations, ma ke he r t re at me nt in th e c om mu ni ty s ometh ing that's just not realistic and certain ly isn't effective." The trial cour t recommended that the Department of Correction plac e the defendant in a spec ial need s facil ity s o that s he could receive both medical and psy chological treatment while in prison. T he defendant concedes that the trial court prope rly revoke d her probation but arg ues tha t the trial court erred by

ordering her to serve the entire balance of her sentence in conf inement. The defendant contends that the trial court should have reinstated her probation, orde red pl acemen t in a community c orrect

ions prog ram, or im

posed a se

ntence o f split con

finemen t. Our general law provides that a trial court may revoke a sentence of

probation upon finding by a preponderance

of the evidence that the defendant has violated the c onditions of his release. Tenn. Code Ann. § 40-35-3 11(e) ( Supp. 2001) ; Stamps v. Sta te , 614 S.W.2d 71, 73 (Tenn. Cri m . App. 1980). On appeal, a revocation will be upheld absent an abuse of discreti on. I

n order t o establish that the tr

ial cour t h as abus ed its discretion, the defendant must show that there is no substantial evidenc e to support the determination that he violated his probation. State v. Harkins , 811 S.W. 2d 79, 82 (Te nn. 19 91) (ci ting Statev. Grear , 568 S.W.2d 285, 286 (Tenn. 1978)); State v. Delp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). Relief can be granted only when "'the trial court 's logic and reasoning were improper when viewed in the light of the factual circumstances and the legal princip les invol ved.'" Statev. Shaffer , 45 S .W.3 d 553, 555 (T enn. 2 001) ( quot ing State v. Moore , 6 S.W.3d 235, 242 (Tenn. 1999)). In this instance, the defenda nt has bee n unable t o establis h that the

trial judge did not e

xercise a conscientious and intelligent judgment. See State v. Gregory , 946 S.W.2d 829, 832 (Ten n. Crim. App. 1997). The defendant acknowledged that she had violated the terms of her probation and had relapsed into alcohol use. Whe

n a defe ndant hasviolate d th e terms of probation, trial courts may order incarceration for the entire balanc e of the sentence. Tenn. Code Ann. §§ 40-35-310, -311(e)-3-

(Supp. 2001). Th

e trial c ourt's d

etermina tion that th

e defendant ser

ve a sent ence of incarc eration

will not be overturned absent an abuse of discretion. See Harkins , 811 S.W.2d at 82. The defendant had several opportunities to rehabil itate her conduct. Becau se she re

peatedl y v iolated the termsof her pr obation, t he trial c ourt did not abuse itsdiscreti on by orderin g incarceration. Accordingly , the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE