             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                           SEPTEMBER 1997 SESSION
                                                           April 8, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE                 )
                                   )    NO. 03C01-9610-CC-00366
             Appellee,             )
                                   )    BLOUNT COUNTY
v.                                 )
                                   )    Hon. D. Kelly Thomas, Jr.
BONNIE STILLWELL                   )
                                   )    (Probation revocation)
             Appellant             )
                                   )



For the Appellant                       For the Appellee

Mack Garner                             John Knox Walkup
District Public Defender                Attorney General & Reporter
419 High Street
Maryville, TN. 37804                    Sarah M. Branch
                                        Assistant Attorney General
                                        2nd Floor Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN. 37243-0943

                                        Michael L. Flynn
                                        District Attorney General

                                        Edward P. Bailey, Jr.
                                        Assistant District Attorney General
                                        363 Court Street
                                        Maryville, TN. 37804-5906




OPINION FILED:_______________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                                OPINION

        The appellant, Bonnie Stillwell, appeals as of right the Blount County Circuit

Court’s order to revoke her probation. She contends that the trial court’s order was

improper in light of her efforts to comply with the terms of probation. After a review of

the record, we affirm the judgment of the trial court.

        On October 17, 1995, the appellant pled guilty to nine counts of passing a

worthless check under $1000 and was sentenced to eleven (11) months and twenty

nine (29) days on each count. The trial court found that those offenses were

committed while the appellant was serving probationary sentences for previous

convictions.1 The trial court, therefore, revoked that probation and placed the

appellant on intensive probation.

        As part of intensive probation, the appellant was ordered to report to and obey

all instructions from her probation officer, maintain employment approved by her

probation officer, complete ten hours of community service per month, notify her

probation officer of any change of address, and pay restitution and court costs for her

current and previous worthless check convictions. Additionally, the appellant was

ordered to serve ninety (90) days, split confinement, in the Blount County jail. 2

        On March 25, 1996, the appellant was arrested pursuant to a probation

violation warrant. The trial court conducted a hearing and received testimony from the

appellant and her probation officer. The evidence was undisputed that the appellant

had failed to comply with the terms of her intensive probation. In the five months

following the trial court’s judgment, the appellant had served only twenty eight (28)

        1
          The appellant’s prior convictions were based upon guilty pleas entered in January, 1995. She
pled guilty to eight counts of passing a worthless check under $1000, three counts of passing a
worthless check over $1000, one count of misdemeanor theft, two counts of forgery, and two counts of
uttering a forged document. The trial court sentenced appellant to concurrent terms of eleven (11)
months and twenty nine (29) days for each count of passing a worthless check under $1000 dollars, two
(2) years for each count of passing a worthless check over $1000, eleven (11) months and twenty nine
(29) days for misdemeanor theft, one (1) year for each count of forgery, and one (1) year for uttering a
forged document. The sentences were suspended and the appellant was placed on supervised
probation pursuant to Tennes see Code An notated section 40-20-206 (Sup p. 1994).

        2
        The trial court ordered the appellant to serve the jail term at two days a week for forty five (45)
consecutive weeks.

                                                     2
days of her split confinement in the Blount County jail. Moreover, she had failed to

complete any community service and had quit her job and changed residences without

notifying her probation officer.

       Marcus Miller, the appellant’s probation officer, testified that the appellant was

negligent in her attendance at their weekly probation meetings. Mr. Miller stated that

for nearly two consecutive months, the appellant missed her probation meetings and

failed to serve any jail time as required under her split confinement. Furthermore, he

indicated that for over a month, he lost all contact with the appellant and was unable

to reach her at her residence.

       From previous meetings with the appellant, Mr. Miller had knowledge that the

appellant was experiencing difficulties at work and in her marriage. He testified that

the appellant quit her job at Walmart in December, 1995, and failed to find subsequent

employment. Moreover, he stated that she began moving to different residences in

January, 1995, because she was attempting to hide from an abusive husband. Mr.

Miller explained that he tried to work around the appellant’s difficulties; however, he

was unable to help her after she moved without notifying his office.

       The appellant admitted that she had failed to comply with the terms of her

probation. She explained, however, that her domestic problems and various health

ailments prevented her from satisfying the probation requirements. The appellant

testified that she suffered from bursitis in her hip and was unable to walk for several

weeks in December, 1995. She stated that she spent almost two weeks in bed during

that month and was forced to quit her job at Walmart. However, she could not explain

why she completely terminated her employment instead of requesting a medical leave

of absence.

       The appellant also testified that due to problems with her husband, she was

unable to serve her jail time or attend the scheduled meetings with her probation

officer. According to the appellant, her husband persistently abused her and

threatened her life during the probation period. She testified that she moved away

                                            3
from her husband in January, 1996; however, she indicated that he eventually found

her and confiscated her vehicle.

       Based upon the above evidence, the trial court determined that the appellant

had materially violated the terms of her intensive probation. The trial court, therefore,

revoked probation and ordered the appellant to serve ninety (90) days in the Blount

County jail.

       The appellant contends on appeal that the trial court’s order was excessive and

improper in light of the personal circumstances surrounding her case. Although she

challenges the revocation of her probation, the substance of her complaint is the

length of the ninety (90) day sentence. She requests this Court to reduce her

sentence to thirty (30) days of split confinement in the Blount County jail with the

remainder to be served in community corrections.

       To support her contention, the appellant relies upon the principles set forth in

State v. Dye, 715 S.W.2d 36, 40-41 (Tenn. 1986). In Dye, our supreme court

addressed the revocation of probation where a defendant failed to pay restitution.

See id. at 37. Following the United States Supreme Court’s decision in Bearden v.

Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983), the Dye court held

that when a probationer has made all reasonable efforts to pay restitution, it is

fundamentally unfair to revoke probation without considering whether adequate

alternative methods of punishment are available. See 715 S.W.2d at 40. However,

the court observed that the Bearden rationale is limited and does not apply where a

defendant is somehow responsible or at fault in failing to pay the restitution. See id.

       In this case, we find that the trial court’s order was justified in light of evidence

that the appellant was responsible for neglecting her probation requirements. The

appellant admitted that she failed to participate in community service, she missed

multiple meetings with her probation officer, she quit her job without obtaining

subsequent employment, she changed her residence without notifying her probation

officer, and she failed to serve her jail term as instructed by the trial court. Although

                                              4
the appellant contends that various health and domestic problems contributed to her

noncompliance, she has failed to demonstrate a clear inability to conform to the terms

of her probation. The record reflects that the appellant was given several

opportunities by her probation officer to satisfy the probation requirements; however,

she persistently missed her probation meetings and further lost contact with her

probation officer for almost two months.

       Although we sympathize with the appellant’s predicament, we find that her

probation violations, both present and past, justify the trial court’s order. A trial court

may revoke a defendant’s probation whenever it finds by a preponderance of the

evidence that the defendant has violated the conditions of her probation. See Tenn.

Code Ann. § 40-35-311(d) (1995). Moreover, upon revocation, the trial court may

execute a new sentence provided that it is equal to or less onerous than the original

sentence. See State v. Melvin Griffin, No. 01C01-9503-CC-00090 (Tenn. Crim. App.

at Nashville, Nov. 16, 1995).

        In this case, the trial court revoked appellant’s probation and imposed a less

onerous sentence of ninety (90) days in the Blount County jail. That decision was

committed to the sound discretion of the trial judge and will not be overturned on

appeal absent an abuse of discretion. See State v. Williamson, 619 S.W.2d 145, 147

(Tenn. Crim. App. 1981), per. app. denied (Tenn. 1981).

       Finding no abuse of discretion, we affirm the judgment of the trial court.



                                                   ___________________________
                                                   WILLIAM M. BARKER, JUDGE


CONCUR:

__________________________
JOHN H. PEAY, JUDGE

__________________________
DAVID G. HAYES, JUDGE



                                              5
