         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE          FILED
                           AUGUST 1999 SESSION
                                                   September 30, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk
STATE OF TENNESSEE,                 )
                                    )    NO. 01C01-9812-CC-00494
      Appellee,                     )
                                    )    WILLIAMSON COUNTY
VS.                                 )
                                    )    HON. TIMOTHY L. EASTER,
STROHN JOHNSON,                     )    JUDGE
                                    )
      Appellant.                    )    (Sentencing - Revocation of Judicial
                                    )     Diversion)


FOR THE APPELLANT:                       FOR THE APPELLEE:

MARK C. SCRUGGS                          PAUL G. SUMMERS
P. O. Box 158932                         Attorney General and Reporter
Nashville, TN 37215-8932
                                         MARK E. DAVIDSON
                                         Assistant Attorney General
                                         Cordell Hull Building, 2nd Floor
                                         425 Fifth Avenue North
                                         Nashville, TN 37243-0493

                                         RONALD L. DAVIS
                                         District Attorney General

                                         LEE E. DRYER
                                         Assistant District Attorney General
                                         Williamson Co. Courthouse
                                         Ste. G-6
                                         P. O. Box 937
                                         Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED; REMANDED FOR ENTRY OF JUDGMENT



JOE G. RILEY, JUDGE
                                       OPINION


       Defendant, Strohn Johnson, appeals the revocation of his judicial diversion

for simple possession of marijuana and imposition of the sentence requiring him to

serve 100 days in split confinement followed by probation. The sole issue on

appeal is whether the trial court erred in requiring the defendant to serve 100 days

in confinement. We AFFIRM the judgment of the trial court relating to the sentence

but REMAND for entry of a formal judgment of conviction.



                              FACTUAL BACKGROUND



       Indicted for the offense of simple possession of marijuana, the defendant

entered a plea of guilty on March 2, 1998. The trial court placed the defendant on

judicial diversion pursuant to Tenn. Code Ann. § 40-35-313(a)(1)(A). The defendant

was placed on probation for a period of 11 months and 29 days.1



       On August 5, 1998, the defendant tested positive for marijuana, cocaine and

benzodiazapam, a form of valium. These results were confirmed by the Redwood

Toxicology laboratory. Defendant was cited into court on a probation violation.



       At the revocation hearing, the defendant conceded that he was a frequent

user of marijuana while he was on probation. He denied knowingly using cocaine

and stated if he ingested cocaine, a marijuana “blunt” must have been laced with

cocaine by someone else. His explanation for the benzodiazapam was a pill given




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         Defendant was also ordered to serve 48 hours in the county jail. This Court has
previously noted that imposing a jail term as a condition of probation is incompatible with the
provisions of the judicial diversion statute. See State v. James C. Wolford, C.C.A. No. 03C01-
9708-CR-00319, Hamilton County (Tenn. Crim. App. filed February 18, 1999, at Knoxville);
State v. Paul David Cable, C.C.A. No. 03C01-9409-CR-00349, Carter County (Tenn. Crim.
App. filed June 1, 1995, at Knoxville). Since the 48 hours has been served, the issue is moot.
However, we direct that on remand the defendant be credited with 48 hours toward the 100
days of confinement.


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him by his mother for back pain. He further acknowledged he had not taken the

necessary steps to receive drug treatment.



       The trial court found the defendant had violated his probation, revoked

judicial diversion/probation, and sentenced the defendant to serve 11 months and

29 days at 75% in the county jail, suspended after 100 days in confinement. The

balance of the sentence was to be served on supervised probation. From this

sentence, the defendant appeals.



                               JUDICIAL DIVERSION



       Tenn. Code Ann. § 40-35-313(a)(1)(A) provides that if a person is found

guilty or pleads guilty to certain offenses, the trial court may, without the entry of a

judgment of guilt and with consent of such person, defer further proceedings. The

defendant is placed on probation with reasonable conditions for not less than the

period of the maximum sentence for the misdemeanor offense with which the

defendant is charged, or not more than the maximum sentence for the felony

offense with which the defendant is charged. Id. Upon violation of probation, the

court may then enter an adjudication of guilt and proceed to sentencing. Tenn.

Code Ann. § 40-35-313(a)(2).



                              STANDARD OF REVIEW



       Revocation of probation is subject to an abuse of discretion standard of

review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.

1991). Discretion is abused only if the record contains no substantial evidence to

support the conclusion of the trial court that a violation of probation has occurred.

Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). We adopt




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these same standards in determining whether the trial court erred in finding a

probation violation and entering an adjudication of guilt under the judicial diversion

statute.



       At the revocation hearing the defendant conceded that he had been a

frequent user of marijuana while on probation.          Thus, the record contains

substantial evidence to support the conclusion of the trial court that a violation of

probation occurred. There was no abuse of discretion by the trial court in finding the

violation of probation and entering the adjudication of guilt.



                                   SENTENCING



       Upon finding the probation violation, the trial court properly proceeded to

sentence the defendant for the original offense. In sentencing the defendant for the

misdemeanor offense of simple possession of marijuana, the trial court noted the

evidence at the revocation hearing and defendant’s failure to cease the use of

illegal drugs. The court further noted the defendant’s failure to seek treatment and

his failure to take advantage of the opportunity granted him under judicial diversion.

Thus, the trial court concluded that measures less restrictive than confinement had

been unsuccessful. See Tenn. Code Ann. § 40-35-103(1)(C). The trial court did

not err by considering defendant’s conduct while on judicial diversion/probation in

sentencing the defendant.



              Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-

302, which provides in part that the trial court shall impose a specific sentence

consistent with the purposes and principles of the 1989 Criminal Sentencing Reform

Act. See State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). The misdemeanor

offender must be sentenced to an authorized determinate sentence with a

percentage of that sentence designated for eligibility for rehabilitative programs.

Tenn. Code Ann. § 40-35-302(d).



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       The trial court retains the authority to place the defendant on probation either

immediately or after a time of periodic or continuous confinement. Tenn. Code Ann.

§ 40-35-302(e).     We further note that the trial court has more flexibility in

misdemeanor sentencing than in felony sentencing. State v. Troutman, 979 S.W.2d

271, 273 (Tenn. 1998). One convicted of a misdemeanor, unlike one convicted of

a felony, is not entitled to a presumption of a minimum sentence. State v. Baker,

966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829,

832 (Tenn. Crim. App. 1994).



       Given the flexibility traditionally granted to the trial court in misdemeanor

sentencing, we find no error in requiring the defendant to serve 100 days of his

sentence of 11 months and 29 days. Probation served in conjunction with judicial

diversion proved unsuccessful in deterring defendant’s illicit drug usage. Defendant

had repeatedly violated the terms of his probation by frequently using marijuana.



           PROCEDURES FOR REVOCATION OF JUDICIAL DIVERSION



       Although not raised as an issue, we take this opportunity to clarify the

procedure to be utilized in cases involving the revocation of judicial diversion. There

does not appear to be a consistent pattern across the state relating to this

procedure. W e suggest the following:



       1. Upon placing a defendant on judicial diversion, the trial court shall enter

an order reflecting the grant of judicial diversion, the length and conditions of

probation, and that further proceedings are deferred. See Tenn. Code Ann. § 40-

35-313(a)(1)(A). This shall be by order and not by the entry of the customary

judgment of conviction form. A standard probation order may also be entered. Jail

time may not be imposed as a condition of probation under the judicial diversion

statute.




                                          5
       2. If there is an alleged violation of probation, the matter shall proceed under

the ordinary procedure for revocation of probation. See Tenn. Code Ann. § 40-35-

311(a).



       3. If the trial court determines by a preponderance of the evidence that the

defendant has violated probation, the trial court may find a violation of probation.

See Tenn. Code Ann. § 40-35-311(e).



       4. Upon finding a violation of probation, the trial court shall proceed to

sentence the defendant for the original offense. See Tenn. Code Ann. § 40-35-

313(a)(2). Sentencing shall proceed pursuant to the standard provisions of the

Sentencing Act. See Tenn. Code Ann. § 40-35-101 et seq.



       5. The trial court shall then enter a standard judgment of conviction form

reflecting the sentence. Either under the special conditions portion of the judgment

form or by separate order, there should also be a notation that the judgment is

being entered pursuant to the judicial diversion statute based upon a violation of

probation.



      REMAND FOR ENTRY OF PROPER JUDGMENT OF CONVICTION



       In the instant case, the trial court entered an order reflecting the probation

violation and sentence imposed. For purposes of clarity and consistency, we

remand this matter to the trial court for entry of a standard judgment of conviction

form reflecting the sentence. It shall also contain a notation that the judgment is

entered pursuant to the judicial diversion statute based upon defendant’s violation

of probation. Credit shall be given for the 48 hours previously served by defendant.




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                                 CONCLUSION



      Based upon the record before this Court, we AFFIRM the judgment of the

trial court relating to the sentence but REMAND for entry of a proper judgment of

conviction consistent with this Opinion.




                                               ____________________________
                                               JOE G. RILEY, JUDGE




CONCUR:


____________________________
THOMAS T. WOODALL, JUDGE



____________________________
L. T. LAFFERTY, SENIOR JUDGE




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