          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE              FILED
                         NOVEMBER, 1997 SESSION
                                                          December 4, 1997

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     )   No. 03C01-9702-CC-00050
      Appellee,                      )
                                     )   Blount County
vs.                                  )
                                     )   Honorable D. Kelly Thomas Jr., Judge
DANIEL WILSON,                       )
                                     )
                                     )   (Probation Revocation)
      Appellant.                     )



FOR THE APPELLANT:                       FOR THE APPELLEE:

SHAWN G. GRAHAM                          JOHN KNOX WALKUP
Assistant District Public Defender       Attorney General & Reporter
419 High St.
Maryville, TN 37804                      MARVIN E. CLEMENTS, JR.
                                         Assistant Attorney General
                                         Criminal Justice Division
                                         450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         MICHAEL L. FLYNN
                                         District Attorney General

                                         PHILIP MORTON
                                         Assistant District Attorney General
                                         363 Court St.
                                         Maryville, TN 37804-5906



OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                      OPINION

              Daniel Wilson, the appellant, appeals pursuant to Rule 3 of the

Tennessee Rules of Criminal Procedure from the trial court's revocation of his

probation. This is his third violation of probation. The gravamen of his complaint

is that the trial court abused its discretion in ordering him to serve his sentence in

incarceration.



              In September, 1993, the appellant entered a guilty plea to two counts

of selling a Schedule VI substance (marijuana). He was sentenced to serve an

aggregate sentence of one year in the county jail in May of 1994.            The court

ordered that he serve seven weekends and then serve two years on supervised

probation. In addition, the court ordered the appellant to pay two thousand dollars

in costs, to perform one hundred hours of public service, to reimburse the Blount

Metro Narcotics Unit $305 in lieu of any restitution, and to obtain his G.E.D.



              In December of 1995, the appellant conceded that he had violated his

probation, and the trial court ordered him to serve 45 days.1 In April , 1996, he was

again cited for a violation of probation for failure to pay probation fees, court costs,

and fines. The court ordered that he pay $400 on the costs and fines prior to June

18, 1996.2 On June 19, 1996, the trial court extended his probationary period for

two additional years, ordered that he pay his probation fees in full within two

months, and required that he pay $50 per week toward his fines, costs, and

restitution. Almost immediately, he once again violated the conditions of his

probation by failing to report on July 12, August 7, and August 23. He paid nothing

on his court costs, fines, and restitution, and on August 19, a drug screen showed

positive for THC. In addition, he had served no community service and had never

received his G.E.D. A third revocation hearing was held on October 4, 1996. The

appellant once again admitted that he had violated the conditions of his probation.

1
       The record does not include the reason for the first revocation proceeding.

2
       The record indicates that the appellant complied with this order.

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However, in mitigation, he testified that he had been reporting regularly to his

probation officer since the first of September, that he was wearing an electronic

monitoring device, and that his subsequent drug screens were all negative. He said

that he had been working regularly and that he was living with and supporting his

wife and child. The trial judge revoked his probation and ordered him to serve the

remainder of his sentence.



              The decision to revoke probation rests with the sound discretion of the

trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). In

order for a reviewing court to find an abuse of discretion, it must be established that

the record contains no substantial evidence to support the trial court's conclusion

that a violation has occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

In reviewing the trial court's findings, we must examine the record and determine

whether the trial court has exercised a conscientious and intelligent judgment that

is not arbitrary. State v. Harkins, 811 S.W.2d at 82. In this case, the record

unquestionably establishes the grounds for revocation because the appellant

unhesitatingly admitted that he had violated several technical conditions of his

probation.



              Once a violation has been established "the trial court shall have the

right . . . to revoke the probation and suspension of sentence and cause the

defendant to commence the execution of the judgment as originally entered or

otherwise in accordance with Section 40-35-310." Tenn. Code Ann. § 40-35-311(d)

(Supp. 1996). Once a violation occurs, the court must determine and implement the

action which will "subserve the ends of justice and the best interests of both the

public and the defendant." State v. David W. Cardwell, No. 03C01-9211-CR-00390,

slip op. at 6 (Tenn. Crim. App., Knoxville, June 29, 1993)(quoting Hooper v. State,

201 Tenn. 156, 297 S.W.2d 78, 91 (Tenn. 1956)).



              The appellant has demonstrated a disregard for the law by repeatedly



                                          3
violating the conditions of his probation. Although he has not been charged or

convicted of another crime, he has continued to disregard the simple requirement

to report to his probation officer. He has not sought a G.E.D. as ordered by the

court. For more than two years he totally disregarded his obligation to perform

community service and made no effort to pay his probation fees, court costs, and

restitution until he was in imminent danger of incarceration. The appellant's desire

to support his family is to his credit, and his willingness to admit his errors is

admirable. Unfortunately, his record does not inspire any confidence in his ability

to persist in these worthwhile endeavors, and shorter periods of incarceration have

not convinced the appellant of the seriousness of his behavior. The trial court made

a conscientious and intelligent decision to revoke the appellant's probation, and the

court's order that the appellant serve the balance of his sentence is supported by

the record.



              We affirm the judgment of the trial court.



                                                 __________________________
                                                 CURWOOD W ITT, Judge



______________________________
JOE B. JONES, Judge



______________________________
PAUL G. SUMMERS, Judge




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