        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                           APRIL SESSION, 1998             July 9, 1998

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,             )   C.C.A. NO. 03C01-9708-CC-00323
                                )
      Appellee,                 )
                                )
                                )   BLOUNT COUNTY
VS.                             )
                                )   HON. D. KELLY THOMAS, JR.
BRUCE E. WILLIAMS,              )   JUDGE
                                )
      Appe llant.               )   (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 Avenu e North
GERALD L. GULLEY, JR.               Nashville, TN 37243
(On App eal 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 PURSU ANT TO RU LE 20

JERRY L. SMITH, JUDGE
                                     ORDER

      On Augu st 19, 1 996, A ppella nt, Bru ce E. W illiams, was placed on

probation. As part of the probation, an electro nic m onitorin g syste m wo uld ca ll

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

three separa te occas ions 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 mo tor offender.



      After a review of the re cord, w e affirm the jud gme nt 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, wheth er the tr ial cou rt shou ld have institute d an a lternativ e

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 abu se of disc retion. 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 eviden ce to s uppo rt the co nclus ion 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 judgm ent.” State v. Hark in,

811 S.W .2d 79, 82 (T enn. 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 tria l court, o nly to ins pect th e foun dation in whic h the d ecisio n is

rooted.



       There is also substan tial evidence to sup port the decis ion not to in stitute

alternative sentencing. “Sentences involving confinement should be based on

the following conside rations: (A) Con finement is ne cessary 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 confin eme nt is particu larly suited to provide an effective deterrence to others

likely to comm it similar offenses; or (C) M easures less restrictive than

confinement have frequently or recently been applied unsuccessfully to the

defend ant.” Tenn. Code Ann. § 40-35-103. Appe llant ha s repe atedly operated

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

electro nic curfew re strictions were tried an d failed . Ther efore th e trial co urt’s

decision to incarcerate is fully supported.



       For the above stated reasons, the decision of the tria l court is affirme d 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




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