        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs November 24, 2009 at Knoxville

                STATE OF TENNESSEE v. JASON ALLEN RUIZ

                  Appeal from the Circuit Court for Marshall County
                          No. 15812 Robert Crigler, Judge




                 No. M2009-01297-CCA-R3-CD - Filed April 23, 2010




The Defendant, Jason Allen Ruiz, pled guilty to one count of sale of cocaine and one count
of delivery of cocaine, both Class B felonies. The trial court merged the convictions and
imposed an effective sentence of eight years as a Range I, standard offender to be served on
probation following an 11 month and 29 day period of confinement in the local jail on work
release. Following the filing of a revocation warrant and an evidentiary hearing, the trial
court found that the Defendant had violated the conditions of his probation and ordered him
to serve his sentence in incarceration. In this appeal as of right, the Defendant contends that
the trial court abused its discretion by ordering him to serve his sentence in confinement.
Following our review, we affirm the judgment of the trial court.


 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.


D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Donna Orr Hargrove, District Public Defender; and Michael J. Collins, Assistant Public
Defender, attorneys for appellant, Jason Allen Ruiz.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Charles Frank Crawford, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, attorneys for appellee, State of Tennessee.
                                            OPINION


        At the guilty plea submission hearing, the trial court1 stated that if the Defendant
revealed his drug source, he could petition the court for suspension of his confinement
sentence after 120 days. After approximately five months, the Defendant petitioned the trial
court for suspension of his sentence; however, the trial court denied the petition because the
Defendant still refused to reveal his drug source. This court reversed the trial court’s
decision and suspended the Defendant’s sentence, effectively sending him to probation. The
supreme court reversed this court’s decision and ordered the Defendant to serve the
remainder of the 11 month and 29 day sentence on work release in the county jail. Once the
Defendant was on probation, a probation violation warrant issued alleging that the Defendant
failed a drug screen by testing positive for marijuana.

        At the March 20, 2009 revocation hearing, the Defendant pled guilty and admitted that
he tested positive for marijuana. He asked the court to consider giving him a lesser sentence
or work release. He explained that he has a wife, two kids, and a house. He stated that he
would be able to get his job back if he were released back to probation. He admitted that his
wife also has a job; however, he stated that her income is not enough to support the children
and maintain the home. On cross examination, the Defendant admitted that this is his second
violation and that after his first violation, the trial court had allowed him to serve 90 days and
then return to probation. When asked about his failed drug test, the Defendant admitted that
he smoked marijuana but also insinuated that something was wrong with the test or the
probation officer who administered the test.

       At the conclusion of the hearing, the trial court found that the Defendant had violated
the conditions of probation and ordered him to serve his sentence in confinement, stating:

               This is your second revocation. The first one was for two
               reasons. The original was for going out of state without
               permission but there was also an amended warrant for smoking
               marijuana. Now you have got another one for smoking
               marijuana.

               I don’t know why you answered the way that you did, that is
               what the probation officer says, but when you get down to being



       1
         Judge Crigler was not the trial judge who accepted the guilty plea and instituted the special
conditions for release.

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              questioned you admit that you were smoking so I don’t know
              why you would bother to even cast aspersions as to her.

              I am going to order you to serve the balance of the sentence. It
              is a shame you didn’t take [advantage] of the probation that you
              had in the past, but enough is enough at some point.


                                         ANALYSIS


       The Defendant contends that the trial court “improperly required the [D]efendant to
serve the balance of his sentence for violating the terms of his probation.” The Defendant
contends that the trial court “should have imposed a [sentence of] split confinement followed
by mandatory inpatient drug rehabilitation.” The State responds that the trial court acted
within its discretion in revoking probation and reinstating the sentence of confinement.

        A trial court may revoke a sentence of probation upon finding by a preponderance of
the evidence that the defendant has violated the conditions of his release. Tenn. Code Ann.
§ 40-35-311(e). A trial court is not required to find that a violation of probation occurred
beyond a reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980).
“The evidence need only show [that] the trial judge has exercised conscientious judgment in
making the decision rather than acting arbitrarily.” Id. Our standard of review on appeal is
whether the trial court abused its discretion in finding that a violation of probation occurred.
State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). In order to conclude that
the trial court abused its discretion, there must be “no substantial evidence to support the
conclusion of the trial judge that a violation of the conditions of probation has occurred.”
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). “Such a finding ‘reflects that the trial
court’s logic and reasoning was improper when viewed in light of the factual circumstances
and relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

        The Defendant admitted to the violations at the revocation hearing but asked the trial
court to give him one more chance to succeed on community corrections. The Defendant
also tried to cast doubt on either the accuracy of the drug screen or the credibility of the
probation officer. The record more than supports the trial court’s decision to revoke
probation and to order the sentence served in confinement. We conclude that the trial court
exercised a conscientious judgment in arriving at its determination. Accordingly, the
judgment of the trial court is affirmed.



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                                   CONCLUSION

      In consideration of the foregoing, the judgment of the trial court revoking the
Defendant’s probation and ordering service of the sentence in confinement is affirmed.




                                               _______________________________
                                               D. KELLY THOMAS, JR., JUDGE




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