FILED

July 9, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

APRIL SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708-CC-00323

)

Appellee, )

)

) BLOUNT COUNTY

VS. )

) HON. D. KELLY THOMAS, JR.

BRUCE E. WILLIAMS, ) JUDGE

)

Appellant. ) (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 Avenue North

GERALD L. GULLEY, JR. Nashville, TN 37243

(On Appeal 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 PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE
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ORDER

On August 19, 1996, Appellant, Bruce E. W illiams, was placed on

probation. As part of the probation, an electronic monitoring system would call

Appellant’s residence to confirm that Appellant was abiding by his curfew. On

three separate occasions 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 motor offender.

After a review of the record, we affirm the judgment 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, whether the trial court should have instituted an alternative

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 abuse of discretion. 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 evidence to support the conclusion 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
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the trial judge to make a conscientious and intelligent judgment.” State v. Harkin,

811 S.W .2d 79, 82 (Tenn. 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 trial court, only to inspect the foundation in which the decision is

rooted.

There is also substantial evidence to support the decision not to institute

alternative sentencing. “Sentences involving confinement should be based on

the following considerations: (A) Confinement is necessary 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 confinement is particularly suited to provide an effective deterrence to others

likely to commit similar offenses; or (C) Measures less restrictive than

confinement have frequently or recently been applied unsuccessfully to the

defendant.” Tenn. Code Ann. § 40-35-103. Appellant has repeatedly operated

motor vehicles while intoxicated. The less restrictive measures of probation and

electronic curfew restrictions were tried and failed. Therefore the trial court’s

decision to incarcerate is fully supported.

For the above stated reasons, the decision of the trial court is affirmed in

accordance with Court of Criminal Appeals Rule 20.
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____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

J. CURWOOD WITT, JR., JUDGE