          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE           FILED
                           APRIL 1999 SESSION          May 26, 1999

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
STATE OF TENNESSEE,                )
                                   )     NO. 03C01-9810-CC-00350
      Appellee,                    )
                                   )     BLOUNT COUNTY
VS.                                )
                                   )     HON. D. KELLY THOMAS, JR.,
DAVID LYN GRIBBLE,                 )     JUDGE
                                   )
      Appellant.                   )     (Probation Revocation)



FOR THE APPELLANT:                       FOR THE APPELLEE:

JULIE A. MARTIN                          JOHN KNOX WALKUP
P.O. Box 426                             Attorney General and Reporter
Knoxville, TN 37901-0426
(On Appeal)                              ELLEN H. POLLACK
                                         Assistant Attorney General
MACK GARNER                              Cordell Hull Building, 2nd Floor
District Public Defender                 425 Fifth Avenue North
419 High Street                          Nashville, TN 37243-0493
Maryville, TN 37804
(At Hearing)                             MICHAEL L. FLYNN
                                         District Attorney General

                                         KIRK ANDREWS
                                         Assistant District Attorney General
                                         363 Court Street
                                         Maryville, TN 37804-5906




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The defendant, David Lyn Gribble, appeals as of right the trial court’s

judgment upon revocation of probation. Defendant admitted his probation violation,

and the trial court sentenced him to serve six months in the county jail with work

release eligibility. In addition to incarceration, the trial court ordered defendant to

serve an additional six months on intensive probation with the condition that he

complete an outpatient alcohol treatment program. We find no abuse of discretion

by the trial court and AFFIRM its judgment in all respects.



                                        FACTS

       In November 1994, defendant pled guilty to facilitation of aggravated assault

and received a two year sentence. The trial court immediately placed him on

supervised probation. In May 1998, the defendant admitted his third probation

violation at issue here.1 Essentially, defendant ignored the requirements of his

probation: he failed to report to his probation officer; failed to perform the required

community service; and failed to pay restitution, probation fees, and court costs.

       The defendant testified that after release from incarceration following his

second probation violation, he lost his job and “was staying drunk all the time, really

wasn’t doing nothing else. Just hanging out with my friends.” During this period,

defendant got behind on his community service and monetary obligations to the

court which eventually caused him to “just quit going [to probation appointments.]”

       However, defendant claims to have matured considerably since that time.

He began a relationship with his fiancee and currently supports her and her young

daughter. Defendant credits the relationship with helping him to “straighten out” his

life. He maintains steady employment and claims to no longer drink.



       1
        The trial court revoked defendant’s probation on two prior occasions. The first
revocation in August 1995 resulted in an 18-day jail sentence, followed by extension of
probation for one year, and an order to perform 50 hours of community service. The
second revocation in February 1996 resulted in defendant’s placement in the Department
of Correction for execution of his sentence. The Department of Correction released
defendant back onto probation in July 1996.

                                           2
       The trial court found defendant’s failure to report to be a chronic problem.

It determined that such failure made it impossible for the court to address

defendant’s underlying problems, particularly an apparent alcohol problem. So that

it might maintain supervision of the defendant upon release, the trial court ordered

defendant to serve six months in the county jail, followed by six months of intensive

probation, as well as completion of an outpatient alcohol treatment program.



                           PROBATION REVOCATION

       Defendant claims that given the “turn around” in his life, the trial court abused

its discretion when it revoked his probation. He argues the trial court should give

him another opportunity to complete probation without additional incarceration. In

the alternative, he argues that six months incarceration is excessive. Finally, the

defendant claims that the court abused its discretion in ordering completion of an

alcohol treatment program.

       Upon a finding by a preponderance of the evidence that a person has

violated a condition of probation, a trial court may revoke probation and order

commencement “of the judgment as originally entered, or otherwise . . . provided

. . . the defendant has the right to appeal.” Tenn. Code Ann. § 40-35-311(d)

(emphasis added).      The decision to revoke probation rests within the sound

discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim.

App. 1991). 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). The

evidence need only show that the trial judge exercised a conscientious and

intelligent judgment, rather than acting arbitrarily. Gregory, 946 S.W.2d at 832;

State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

       In this case, the probation officer testified that defendant simply ignored his

probation requirements. Defendant admitted his violations. And, in spite of his



                                           3
assertion that he no longer drinks due to the disapproval of his fiancee, the

defendant acknowledged that he “stayed drunk” after release from incarceration

following the second probation violation.

       The trial court did not abuse its discretion by ordering the defendant to serve

six months confinement, and further requiring that defendant submit to outpatient

alcohol treatment.2 Defendant’s contentions are without merit.



                                    CONCLUSION

       Based upon the foregoing, we find no abuse of discretion by the trial court

and AFFIRM its judgment in all respects.




                                                  ____________________________
                                                   JOE G. RILEY, JUDGE




CONCUR:



____________________________
JERRY L. SMITH, JUDGE



____________________________
NORMA McGEE OGLE, JUDGE




       2
       We note that defendant’s original probation rules called for an alcohol and drug
assessment to which defendant never submitted.

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