FILED

October 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, )

)

Appellee, ) C.C.A.No. 01C01-9610-CC-00437

)

vs. ) Rutherford County

)

CHRISTOPHER DANE MCBRIDE, ) Honorable J.S. Daniels, Judge

)

Appellant. ) (Motion for Reinstatement of

) Probation)

FOR THE APPELLANT: FOR THE APPELLEE:

WILLIAM A. OSBORNE JOHN KNOX WALKUP

Assistant District Public Defender Attorney General & Reporter

201 W. Main St., Ste. 101

Murfreesboro, TN 37130 GEORGIA BLYTHE FELNER

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

WILLIAM WHITESELL

District Attorney General

DALE ROBINSON

Assistant District Attorney General

Judicial Bldg., Third Floor

Murfreesboro, TN 37130

OPINION FILED: ____________________

AFFIRMED

CURWOOD WITT 

JUDGE
1Our review of sentencing determinations is de novo, with or without a

presumption of correctness, depending on whether the record affirmatively

reflects that the trial court has considered the sentencing principles and all the

relevant facts and circumstances. Tenn. Code Ann. § 40-35-401(d) (1990);

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

2

OPINION

The defendant, Christopher Dane McBride, appeals the Rutherford

County Circuit Court's denial of his post-revocation motion for reinstatement of

probation. Following guilty pleas to the crimes of DUI and driving on a suspended

license, McBride was sentenced to 11 months, 29 days at 75 percent service,

suspended in favor of 48 hours of confinement in the county facility, 17 months, 29

days probation, payment of costs and fines, and revocation of his driver's license

for one year for DUI, and 6 months confinement at 75 percent, suspended in favor

of probation of 17 months, 29 days on the same conditions imposed in the DUI

conviction, for driving on a suspended license. The sentences were imposed

consecutively. Thereafter, the defendant's probation was revoked when he failed

to report to the Rutherford County Jail to serve his 48 hours of confinement. He

was apparently ordered to serve the balance of his sentence in the county jail, and

several weeks later he filed a "motion for probation," which the trial court denied

after a hearing. In this appeal, he challenges the lower court's denial of that motion.

On review, we affirm the court below.

We begin by noting the question of the propriety of the probation

revocation and the procedures followed in that proceeding are not before us.

Rather, the defendant has appealed only the court's subsequent denial of his

"motion for probation." The defendant characterizes this action as a sentencing

determination and urges us to consider the issue de novo,

1

 as we would review a

sentencing determination on direct appeal. On the other hand, the state

characterizes the challenged action of the trial court as a probation revocation
3

proceeding and counsels us to review the trial court's action for an abuse of

discretion. See State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). We

do not wholly agree with either argument.

Tennessee Code Annotated section 40-35-306(c) grants the trial court

the authority to revoke a split confinement sentence and impose a sentence in the

local jail or workhouse upon a violation of probation. This section likewise allows

defendants placed in periodic confinement pursuant to the section to make periodic

applications for a grant of probation. Tenn. Code Ann. § 40-35-306(c) (1990).

Although neither the record nor the parties' briefs acknowledge that the defendant

was proceeding under this section in his "motion for probation," it is apparent that

this is the applicable law. In determining how we shall review the issue before us,

what we find controlling, and what neither party at bar has argued, is the appropriate

standard of review for actions arising under this section of the Code.

Our research reveals no specific statutory directive as to the proper

standard of review for determinations under section 40-35-306(c). Likewise, we find

no decisional authority directly on point from this court or the supreme court. We

are guided, however, by the standard of review applicable to motions for sentence

reduction under Rule of Criminal Procedure 35, abuse of discretion. State v. Irick,

861 S.W.2d 375, 376 (Tenn. Crim. App. 1993); State v. Lance C. Hof, No. 01C01-

9102-CR-00045 (Tenn. Crim. App., Nashville, Dec. 20, 1991), perm. app. dismissed

(Tenn. 1992). Further, another panel of this court has at least implied that review

for abuse of discretion is appropriate under section 40-35-306(c). See State v.

Elbert Murfree Marable, Sr., No. 01C01-9512-CC-00436, slip op. at 6-7 (Tenn. Crim.

App., Nashville, Apr. 3, 1997) (trial court "within its discretion" in requiring defendant

to serve a year of his sentence before making a reapplication for probation under

§ 40-35-306(c)). It is a logical extension of the foregoing authorities to apply abuse
2Of course, a defendant may choose to waive his right to formal, judicial

sentencing by accepting a settlement in which a determined sentence is part of

the plea agreement.

4

of discretion review to determinations under section 40-35-306(c). In so holding, we

further note that such defendants have previously been afforded formal sentencing

under the Sentencing Reform Act2

 and the right of appeal therefrom, at which time

the sentence would have been subject to de novo review.

Turning to the case at bar, the defendant testified at the hearing on

his motion for probation about his failure to serve the 48 hour incarcerative portion

of his sentence and characterized this as poor judgment. He declared his intent to

marry his girlfriend, with whom he has two children, maintain employment and live

responsibly. He tendered a letter from a prospective employer who had agreed to

interview him upon his release. He testified he turned himself in upon learning of

the capias which was issued following his failure to report so that he might get the

incident behind him. The defendant claimed he had learned his lesson from the

time he had served. He told the court he would not drive under any circumstance

and had arranged for transportation.

The order denying the application for suspended sentence reflects

simply that the request was denied. The statement of the evidence, however,

reflects that the court relied on the defendant's disregard of driving and traffic laws

as evidenced by the specific data report prepared by probation personnel, the

defendant's prior probation revocation, and the defendant's status as an habitual

motor vehicle offender.

The defendant before us is but 26 years old, yet he has a lengthy

criminal history dating back to the age of 10, which includes numerous motor
3

In fact, the court's lack of confidence in the defendant proved prophetic,

as evidenced by his subsequent escape from confinement. For purposes of our

review, however, we have not considered the escape.

5

vehicle offenses, eight of which are prior convictions for driving on a revoked or

suspended license, multiple theft-related offenses and multiple alcohol and drug

related offenses. He admitted a previous probation revocation, and he has

previously committed offenses while on probation. The trial court had no reason to

believe his testimony that his performance would improve and every reason to

believe his anti-social lifestyle would continue, and it noted as much.3 This is simply

a case in which the defendant's actions speak louder than his words. His conduct

in this case and his long history of non-compliance with the law and with the terms

of other alternative sentences indicate further leniency is not likely to yield favorable

results. As such, the trial court did not abuse its discretion in denying his motion for

reinstatement of probation. 

Next, the defendant urges for the first time on appeal that the trial

court should have considered other forms of alternative sentencing. This issue, not

raised below, is not properly before us. See Tenn. R. App. P. 36(a) ("relief may not

be granted in contravention of the trier of fact").

Finally, we observe from a notation on the technical record that the

defendant escaped from the workhouse the day after counsel filed a notice of

appeal on his behalf. The record does not reflect whether the defendant was ever

recaptured. In Tennessee, a defendant who escapes waives his right to direct

appeal, French v. State, 824 S.W.2d 161 (Tenn. 1992), unless he is in custody at

the time his appeal is considered by the appellate court. Knight v. State, 190 Tenn.

326, 229 S.W.2d 501 (1950); Campbell v. State, 576 S.W.2d 591 (Tenn. Crim. App.

1978). In appropriate circumstances, the state may make a motion for this court to
6

dismiss an escapee's appeal. See Tenn. R. Ct. Crim. App. 7 (motions and orders);

Tenn. R. App. P. 22 (motions); Tenn. R. App. P. 14 (consideration of post-judgment

facts in the appellate court). Because the state has not made such a request in this

case and the defendant's present incarcerative status is unknown, we have not

considered whether the defendant's appeal is subject to dismissal based upon his

escape.

The judgment of the lower court is affirmed.

_______________________________

CURWOOD WITT, JUDGE

CONCUR:

_______________________________

GARY R. WADE, JUDGE

_______________________________

THOMAS T. WOODALL, JUDGE