# FILED
May 26, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1999 SESSION

STATE OF TENN ESSEE, ) ) NO. 03C01-9810-CC-00350 Appellee, ) ) BLOUNT COUNTY VS. ) ) HON. D. KELLY TH OMAS, JR., DAVID LYN

GRIBBLE, ) JUDGE ) Appellant. ) (Probation Revocation)

FOR THE APPELLANT : JULIE A. MA

RTIN P.O. Box 426 Knoxville, TN 37901-0426 (On Appeal) MACK GA

RNER District Public Defender 419 High Street Maryville, TN 378

04 (At Hearing) FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter ELLEN H. POLLACK Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 MICHAEL L. FLYNN District Attorney General KIRK ANDREWS Assistant

DistrictAttorney

General 363 Court Street Maryville, TN 37804-5906

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE1 The trial court r evoked defenda

nt’s probation on tw

o prior occasions . The first revocation in August 1995 resulted in an 18-day jail sentence, followed by extension of probation for one year, and an order to perform 50 hour s of community service. The second revocation in February 1996 resulted in defenda nt’s placement in the Department of Correction for execution of his sentence. The Department of Correction released defendant back onto probation in July 1996. 2 OPINION

The defe ndant, David Lyn Gri bble, appeals as of right the t rial cour t’ s judgmentupon revocation of probation. Defendantadmitted his probation vi olation, and the trial court sentenced him to serve six months in the county jail with work release eligibility. In addition to incarceration, the tr ial court ordereddefendant to
serve an additio nal si x months on intensive pr obation with the condition that he complete an outpatient alcohol treatment pr ogram. We find no abuse of discretion by the trial court and AFFIRM its judgment in all respects.

FACTS In November 1994, defendant pled guilty to facilitation of aggravated assault and received a two y

ear senten ce. The trial court immediately placed him on
s upervised probation. In May 1998, the defendant admitte d his third probatio n violation at issue here. 1 Essentially, defendant i gnored the requirements of his probation: he failed to report to his probation officer; failed to perform the required community

service; and failed to pay restitution, pro bat ion fees, and court costs. The defendant testified that aft er re lease from incarceration following his second probation violation, he lost his job and “was staying drunk all the time, really wasn’t doing nothing else. Ju st hanging out with my friends.” During this per i od, defendant got behind on his community serv ice an d monetary obligations t o the court which eventually

caused him to “just quit going [to probation appointments.]” However, defendant claims to have matured c onsiderably sinc

e that time. He began arelationship with his fiancee and currently su pports her and her young daughter. Defendant credits the relationship with helping him to “straighten out” his life. He maintains steady employment and claims to no longer drink.3 The tria l court found defendant’s failure to r eport to be a chronic probl em . It determined that such fail ure made it impossible for the court to address defendant’s underlying problems, particularlyan apparent alcohol problem. So that it might maintain supervi sion of the defendant upon release, the trial court ordered defendant to serve six months in the county jail, followed by

six months of inten sive probation, a

s well as completion o

f an outpatient

alcohol tr

eatment prog ram.

PROBATION R EVOCATION Defendantclaims that given the “turn around” in his life, the trial cour t abused its discretion when it revoked his probation. He argues the trial court sho uld give him another opportunity to complete probation without additional incarcerati on. In the alternati ve, h e argues that six months incarceration is ex

cessive. Finally, the defendant cla i ms that the court abused its di scretion in ordering completion of an alcohol tre

atment progr

am. Upon a finding by a preponderanc e of the evidence that a person has viola ted a condition of probation, a tri al court may revoke p robation an d orde r commencem ent “of the judgment as origi nally entered, or otherwise . . . provide d

. . . the defendant has the right to ap peal.” Tenn. Code Ann. § 40-35-311(d) (emphasis added). The decision to rev oke p roba tion rests within the sound discret ion of the trial court. State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim

. App. 1991). Revocation of probation is subject to an abuse of d iscretion standard of review, rather than a de novo standard

. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is abus e d only if the record contai ns no substantial evidence to support the conclusion of the trial court that a v

iolation of probation has occurred. Id. ; State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). The evidence need only show that the trial judge ex

ercised a conscientious and intelligent

judgment, rath er than acting arbitra rily. Gregory , 946 S.W.2d at 832; State v. Leach , 914 S.W.2d 104, 10 6 (Tenn. Crim. App. 1995). In this case, the probation officer testified that defenda nt simply ignored his probation req ui rements. Defendant admitted his violations. And, in spite o f his2 We note that defendant’s original probation rules called for an alcohol and drug

assessment to which defendant never submitted. 4 assertion that he no longer drinks due to the disappr oval of h is fiancee, the defendant acknowledged that h e “sta yed drunk” after release fr om incarceration following the second prob ation violation. The trial court did not abuse its discretion by ordering t he defe ndant to serve six months confinement, and further requiring tha

t defendant submit tooutpatient alcohol treatment. 2 Defendant’s contentions are w ithout merit.

CONCLUSION Based upon the foregoing, we find no abuse of discretion by the trial cou rt and AFFIRM its judgment in all respects.

____________________________ JOE G. RILEY, JUDGE

CONCUR:

____________________________ JERRY L. SMITH, JU DGE

____________________________ NORMA McGEE OGLE, JUDGE