         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 14, 2004

                 STATE OF TENNESSEE v. THOMAS L. GOUGE

                      Appeal from the Criminal Court for Sullivan County
                           No. S45,987    Phyllis H. Miller, Judge



                    No. E2003-02492-CCA-R3-CD - Filed January 10, 2005


The defendant, Thomas L. Gouge, appeals from the trial court's revocation of probation requiring
a sixty-day jail sentence. The order of revocation provided that the defendant reside in a work
release facility for an unspecified amount of time after service of sixty days and that his probationary
release was conditioned upon his refraining from taking residence "with any female to whom he is
not married." The order of revocation is affirmed; the sentence, however, is modified by deleting
the provision prohibiting the sharing of the residence with an unmarried woman.

                 Tenn. R. App. P. 3; Judgment of the Trial Court is Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which J. CURWOOD WITT , JR. and, ALAN
E. GLENN , JJ., joined.

David Crockett, Elizabethton, Tennessee (at trial), and Steve McEwen, Mountain City, Tennessee
(on appeal), for the appellant, Thomas L. Gouge.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
H. Greeley Wells, Jr., District Attorney General; and Kent Chitwood, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         On April 3, 2003, the defendant entered a plea of guilt to driving under the influence, first
offense. The trial court imposed a sentence of eleven months, twenty-nine days. After a four-day
jail term, the defendant was released on probation for the remainder of his sentence.

        Approximately thirty-five days later, a violation of probation warrant was issued alleging that
the defendant had driven on two occasions after his licensed had been revoked. At the revocation
hearing, the defendant admitted that he had violated the terms of his probation by operating his
vehicle. The defendant, a manager of Service Loan and Tax in Kingsport, testified that he was
engaged to be married, had one child by his fiancee, and was expecting another child. He explained
that since his conviction his fiancee, with whom he resided, had served as his driver on all but two
occasions: first, when he drove to and from a probation meeting in Blountville and, second, when
he drove to a meeting with a probation officer in Elizabethton. He asserted that his fiancee, who was
the only other employee at his office, was working at that time and that he chose to drive because
he was "afraid of getting in trouble" for missing the appointment. The defendant claimed that since
the issuance of the probation violation warrant, either his fiancee provided transportation or he
utilized taxi cab services. The defendant expressed particular concern that if he were jailed, he
would be discharged from his employment and his fiancee would not marry him.1

        At the conclusion of the hearing, the trial court specifically found that the testimony of the
defendant, who had a prior DUI conviction, was not "credible at all." Observing that the defendant
had pled guilty to violating probation, the trial court revoked probation on the balance of the
sentence, pointed out that the defendant could receive "two for one credit" if he became a trusty, and
determined that the defendant was immediately eligible for furloughs or work release if granted by
the work release commission. When the defendant sought a reconsideration of the revocation order
at a later hearing, the trial court found that because the defendant had a previous conviction for
driving under the influence, he knew or should have known that he was not supposed to drive after
the revocation of his license. The trial court also expressed concern about the defendant's eight-year
shared-residence relationship with a fiancee, an illegitimate child in the house, and another child "on
the way." After further argument, the trial court modified its order to provide for sixty days to be
served in jail subject to "good time," which would translate to fifteen days credit. Another condition
of release was that the defendant make arrangement so that he "is not living with some unmarried
woman with her babies." The trial court directed that after his term in jail, the defendant would be
required to report to the Brown Annex work release facility for "a day or two" until a separate
residence was established.

        In this appeal of right, the defendant argues that the trial court erred by ordering a sixty-day
jail term and by requiring him to reside in the Brown Annex as a condition of probation until he
made arrangements to live apart from his fiancee or "any female to whom he is not married." In
response, the state submits that the sixty-day jail term is appropriate. It concedes, however, that the
trial court erred by requiring the defendant to make living arrangements apart from his fiancee.

        In misdemeanor sentencing, the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. The sentence must be specific
and consistent with the purposes of the Act. Tenn. Code Ann. § 40-35-302(a), (b). Not greater than
75 percent of the sentence should be fixed for service by a misdemeanor offender; however, a DUI
offender may be required to serve the full one hundred percent of his sentence. Tenn. Code Ann.
§ 40-35-302(d); Palmer v. State, 902 S.W.2d 391, 393-94 (Tenn. 1995). In determining the
percentage of the sentence, the court must consider enhancement and mitigating factors as well as
the legislative purposes and principles related to sentencing. Tenn. Code Ann. § 40-35-302(d).



       1
           The defense brief indicates that the defendant has since married his fiancee.

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         Upon service of the required percentage, the administrative agency governing the
rehabilitative programs determines which among the lawful programs available is appropriate. The
trial court retains the authority to place the defendant on probation either immediately or after a term
of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e). The legislature has
encouraged courts to consider public or private agencies for probation supervision prior to directing
supervision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The statutory
scheme is designed to provide the trial court with continuing jurisdiction in the misdemeanor case
and a wide latitude of flexibility. The misdemeanant, unlike the felon, is not entitled to the
presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.
1994). Appellate review of misdemeanor sentencing is de novo with a presumption of correctness.
See State v. Troutman, 979 S.W.2d 271 (Tenn. 1998). If the trial court's findings of fact are
adequately supported by the record, this court may not modify the sentence even if it would have
preferred a different result. State v. Fletcher, 805 S.W.2d 785 (Tenn. Crim. App. 1991).

         Our general law provides that a trial court may revoke a sentence of probation upon finding
that the defendant has violated the conditions of his release. Tenn. Code Ann. § 40-35-311(e). A
trial judge's decision to revoke a defendant's release should not be disturbed unless there is an abuse
of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order to prevail under the abuse
of discretion standard, the defendant must establish that the record contains "no substantial evidence
to support the conclusion of the trial judge that a violation of the conditions . . . occurred." Id.

         The trial judge is not required to find that a violation of the terms of probation has occurred
beyond a reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). Rather,
the existence of a violation of probation need only be supported by a preponderance of the evidence.
Tenn. Code Ann. § 40- 35-311(e).

         In this instance, the defendant acknowledges that he violated the terms of his probation by
driving on a revoked license on two separate occasions. In the appeal, the defendant merely asserts
that the term is onerous given the facts of the case. Although the record establishes that the
defendant was gainfully employed and provided a residence and support for his fiancee and child,
he did, in fact, have a prior driving under the influence offense. The trial court observed that some
of his testimony lacked candor. The record supports the fact that the defendant, while not necessarily
untruthful, was not entirely forthcoming in his responses to questioning. Under these circumstances,
it cannot be said that the trial court abused its discretion by revoking probation and imposing a sixty-
day term of confinement.

        On the other hand, the terms of the defendant's probation following the service of sixty days
must be modified. In State v. Mathis, 114 S.W.3d 915, 918 (Tenn. 2003), our supreme court ruled
that conditions of probation must reasonably relate to the purpose of the sentence and must serve
either "the goal of rehabilitation or the goal of deterrence." In that case, the trial court was not
permitted to require the defendant to legitimate his daughter as a condition of probation on a
conviction of reckless aggravated assault. Id. Tennessee Code Annotated Section 40-35-303(d)(9)
permits trial courts to impose only "conditions reasonably related to the purpose of the offender's


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sentence and not unduly restriction of the offender's liberty." As acknowledged by the state, the
condition requiring separate living arrangements from a fiancee is unrelated to the offense of driving
under the influence and, therefore, must be stricken.

       Accordingly, the judgment is modified to eliminate any restriction as to alternative living
arrangements. Otherwise, the order of revocation and the imposition of the sixty-day jail term are
affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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