                                                                                        02/11/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                         Assigned on Briefs January 24, 2019

         STATE OF TENNESSEE v. DANIEL DEWAYNE KINCAID

                   Appeal from the Blount County Circuit Court
               Nos. C-24642, C-24643     Tammy Harrington, Judge


                            No. E2018-01012-CCA-R3-CD


The Defendant, Daniel Dewayne Kincaid, appeals as of right from the Blount County
Circuit Court’s revocation of his probationary sentence and order of one hundred and
eighty days of split confinement for his convictions for DUI. The Defendant contends
that the trial court abused its discretion by ordering him to serve one hundred and eighty
days of split confinement before being released on supervised probation. Following our
review, we affirm the judgments of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

J. Liddell Kirk, (on appeal); and Mack Garner, District Public Defender (at probation
violation hearing), for the appellant, Daniel Dewayne Kincaid.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Mike Flynn, District Attorney General; and Tyler Parks, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       On May 26, 2017, the Defendant pled guilty to multiple counts of DUI and a
violation of the implied consent law. See Tenn. Code Ann. §§ 55-10-401, -406. The trial
court sentenced the Defendant to eleven months and twenty-nine days on supervised
probation. On April 2, 2018, a probation violation warrant was issued for the Defendant
based upon multiple alleged violations. A probation revocation hearing was held on May
14, 2018.
       Paris Wilson testified that she was employed as a probation officer for the
Tennessee Department of Correction. Ms. Wilson supervised the Defendant’s probation
beginning in June 2017, and she testified that he had violated the terms of his probation
multiple times and that she issued a warrant for his arrest. Ms. Wilson explained that the
Defendant broke curfew on March 27, 2018. She said that she had placed the Defendant
on an officer-supervised curfew from 6:00 p.m. to 6:00 a.m. Ms. Wilson said that when
she arrived at the Defendant’s hotel room at 9:00 p.m. on March 27, he was not at home.

       Ms. Wilson also testified that the Defendant drove on a revoked license on March
4, 2018, and that he failed to report this violation to Ms. Wilson. Ms. Wilson testified
that she learned of the Defendant’s driving on a revoked license from an alert that he was
released from custody on March 5, 2018.

        Ms. Wilson also alleged that the Defendant violated the rules of his probation by
failing to report to her a room change at the hotel in which he was living. She said that
she learned of the room change when the Defendant “brought [in] a new reporting
form[.]”

        Ms. Wilson further testified that the Defendant owed court costs. She was unsure
of the exact amount but estimated it to be “a couple thousand dollars.” Ms. Wilson said
that the Defendant failed to make any payments the first six months of his supervision but
that he had begun making payments in January 2018.

        The Defendant testified that he had been on probation since June 2017. He
explained that during that time, he supported himself with a social security check due to
“severe back problems.” The Defendant asserted that he had begun paying court costs
and was making monthly payments. The Defendant confirmed that he changed rooms in
the hotel in which he was staying. He testified that he did not report that he had moved
because he “was not thinking that that was a total change of address.” The Defendant
also admitted to being arrested for driving on a revoked license. The Defendant testified
that he did not immediately report the arrest to Ms. Wilson because he was preoccupied
with determining a way to return the car he had been driving to the vehicle’s owner. The
Defendant explained that he had an upcoming meeting scheduled with Ms. Wilson and
that he planned to tell her then. The Defendant said that Ms. Wilson called him the day
after the incident and that was when he told her what had happened regarding his arrest.

      At the conclusion of the hearing, the trial court made the following findings:

      The [c]ourt does find that the State of Tennessee met its burden as to the
      violation in the violation of rule number one, that the [Defendant] was
      arrested on March 4, 2018, for driving on a revoked license in Blount
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       County. That is uncontested. Number two, that the [Defendant] failed to
       notify his probation officer of the arrest. There’s a small argument as to the
       timing of that, but it is largely uncontested that that happened. [The
       Defendant] failed to notify [the] officer of a change in hotel rooms. That’s
       uncontested. He says he was mistaken about what that meant as far as his
       address, but that is uncontested. Failed to follow sanction[ed] curfew.
       Testimony is that he was not home for curfew on March 27, 2018. I
       specifically find that the State has met its burden as to that allegation. And
       that the offender owed supervision fees and court costs in both cases and
       that has been proven as well.

The trial court revoked the Defendant’s probation and ordered him to serve one hundred
and eighty days of split confinement.

                                        ANALYSIS

        On appeal, the Defendant argues that the trial court abused its discretion in
revoking his probation and ordering him to serve one hundred and eighty days of split
confinement. Specifically, the Defendant argues that “[u]nder the circumstances, [a]
shorter split confinement period . . . would have been a more reasonable consequence for
his violations than imposing confinement for six months.” The State responds that the
trial court acted properly within its discretion. We agree with the State.

        Upon finding by a preponderance of the evidence that a defendant has violated the
conditions of his release, the trial court “shall have the right . . . to revoke the probation
and suspension of sentence” and either “commence the execution of the judgment as
originally entered” or “[r]esentence the defendant for the remainder of the unexpired term
to any community-based alternative to incarceration.” Tenn. Code Ann. § 40-35-311(e).
In a probation revocation hearing, the credibility of the witnesses is determined by the
trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

        Furthermore, the decision to revoke probation is in the sound discretion of the trial
judge. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); Mitchell; 810
S.W.2d at 735. The judgment of the trial court to revoke probation will be upheld on
appeal unless there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991). To find an abuse of discretion in a probation revocation case, “it must be
established that the record contains no substantial evidence to support the conclusion of
the trial judge that a violation of the conditions of probation has occurred.” Id. (citing
State v. Gear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980)); see also State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim.
App. 2011). Such a finding “‘reflects that the trial court’s logic and reasoning was
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improper 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)).

       Here, the trial court specifically found that the Defendant violated multiple rules
of his probation, those being as follows: the Defendant was arrested and failed to report
the arrest to his probation officer; the Defendant failed to notify his probation officer of
his change in hotel rooms; the Defendant was not at home for curfew; and the Defendant
owed court costs and fees. This court has repeatedly held that “an accused, already on
probation, is not entitled to a second grant of probation or another form of alternative
sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065,
at *2 (Tenn. Crim. App. Feb. 10, 1999); see also State v. Timothy A. Johnson, No.
M2001-01362-CCA-R3-CD, 2002 WL 242351, at *2 (Tenn. Crim. App. Feb. 11, 2002).
The trial court properly considered the evidence presented at the revocation hearing and
the facts of the case before ordering the Defendant to serve a portion of his sentence.
Accordingly, the Defendant is not entitled to relief regarding this issue.

                                     CONCLUSION
        Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.
                                                      _____________________________
                                                      D. KELLY THOMAS, JR., JUDGE




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