        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs February 23, 2010

            STATE OF TENNESSEE v. JAMES DAVID ALLEN, III

                    Appeal from the Circuit Court for Blount County
                        No. C-17282 David R. Duggan, Judge




                  No. E2009-01370-CCA-R3-CD - Filed June 11, 2010



The Defendant, James David Allen, III, pled guilty to vandalism, a Class E felony, and
received a sentence of two years of probation under the judicial diversion program. See
Tenn. Code Ann. § 40-35-313(a)(1)(A). Following the filing of a violation of probation
warrant and an amended violation of probation warrant, the Defendant was sentenced to
serve seven consecutive weekends in the Blount County Jail. Following the service of the
seven weekends in jail, the Defendant was directed to return to supervised probation for the
balance of his sentence. On April 7, 2009, a second violation of probation warrant was filed.
Following a revocation hearing, the trial court revoked the Defendant’s sentence of probation
and ordered the Defendant to serve the remainder of the two-year sentence. In this appeal
as of right, the Defendant contends that the trial court erred in denying alternative sentencing.
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, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

J. Liddell Kirk, Knoxville, Tennessee (on appeal); Raymond Mack Garner, District Public
Defender; and Stacey D. Nordquist, Assistant District Public Defender, attorneys for
appellant, James David Allen, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Michael L. Flynn, District Attorney General; and Clinton Evan Frazier, Assistant
District Attorney General, attorneys for appellee, State of Tennessee.
                                         OPINION

       The Defendant admitted that he violated the conditions of his probation and did not
challenge the revocation of his diversion. The Defendant was originally placed on probation
for vandalizing several trucks at a car lot. Following his conviction for vandalism, the
Defendant had “been going to Cherokee” to receive medication for issues related to his
mental health. He stated that approximately once a month he suffered from “blackouts and
problems with anger” and that he had these blackouts for years. The Defendant was
prescribed an anti-depressant for this condition.

       While on probation, the Defendant’s probation was revoked for a driving under the
influence (DUI) charge he received. As a result of that revocation, the Defendant served
seven weekends in jail and was then placed back on probation. His diversion was not
revoked. The Defendant stated that he was drinking at a party when he decided to drive
home and that while he was driving home, he suffered from another blackout before he was
stopped and charged with DUI.

      When the Defendant was placed back on probation following the initial revocation,
he was cited for driving on a revoked license. The Defendant stated that he was stopped for
speeding in a school zone when he was “going to the store to get [his disabled father] some
food and drinks” because his father was “having trouble with his leg that morning.”

       The Defendant stated that he did not have a job but that his girlfriend and father
provided for him in exchange for his help with his girlfriend’s children and for helping his
father around the house. He stated that “[s]heetrock is the only job [he had] ever had.”

       The Defendant stated that if he were allowed to continue with probation, he would go
back to Cherokee so that he could “get back on medication.” He admitted that he made a
mistake when he decided to drive impaired and then drive on a revoked license. He said that
he would be able to get his license back if he pays his “reinstatement fee and . . . fines.” He
also admitted that he would have to get car insurance. He asked the court to place him back
on probation and stated that he would follow the rules if he were placed on probation again.

        On cross-examination, the Defendant admitted that he vandalized the trucks on the
car lot because he “got mad and . . . blacked out” and that he did “violent things” when he
blacked out. However, he stated that his blackouts no longer caused him to do violent things
and that the blackouts simply caused memory loss. The Defendant admitted that he violated
his probation by driving impaired and by failing a drug screen, that he was given a second
chance to receive diversion, and that after he received this second chance, he violated his
probation a second time.

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       After noting the irregularity of the Defendant’s case in that he was offered a second
chance at diversion, the trial court stated that he was unsure as to whether he was limited to
ordering the Defendant to serve the rest of the probationary sentence in jail or whether he
was permitted to issue a new sentence. The trial then revoked the Defendant’s diversionary
sentence and discussed the sentencing principles and enhancement and mitigating factors.
The court noted the Defendant’s lack of potential for rehabilitation and ability to comply with
the terms of probation given the violations occurring after the initial diversionary sentence.
The trial court then denied all forms of alternative sentencing and ordered the Defendant to
serve two years in confinement.

                                         ANALYSIS

       The Defendant does not contest the length of his sentence but contends that the trial
court erred in denying all forms of alternative sentencing. The Defendant also contends that
the record does not support the trial court’s sentencing decision because the trial court did
not address the “criteria necessary for imposing total confinement.” Additionally, the trial
court stressed uncertainty in his sentencing decision as to whether the court was limited to
“imposing a previously established sentence” or whether the court was able to conduct an
entirely new sentencing hearing. The State responds that the trial court considered the
necessary principles of sentencing, enhancement and mitigating factors, and evidence
presented at the hearing and that the record supports the court’s sentencing decision.

       “The court may defer further proceedings against a qualified defendant and place the
defendant on probation upon such reasonable conditions as it may require without entering
a judgment of guilty and with the consent of the qualified defendant.” Tenn. Code Ann. §
40-35-313(a)(1)(A). “The deferral shall be for a period of time . . . not more than the period
of the maximum sentence of the felony with which the person is charged.” Tenn. Code Ann.
§ 40-35-313(a)(1)(A). If a defendant does not violate the conditions of his release, the trial
court “shall discharge the person and dismiss the proceedings against the person.” Tenn.
Code Ann. § 40-35-313(a)(2). If a defendant violates a condition of his release, the trial
court “may enter an adjudication of guilt and proceed as otherwise provided.” Tenn. Code
Ann. § 40-35-313(a)(2). In determining whether a defendant has violated the conditions of
his release, “the trial court should follow the same procedures as those used for ordinary
probation revocations.” Alder v. State, 108 S.W.3d 263, 266 (Tenn. Crim. App. 2002).
However, if the trial court determines that the defendant’s diversionary sentence should be
revoked, the trial court must then conduct a sentencing hearing. State v. Judkins, 185 S.W.3d
422, 426 (Tenn. Crim. App. 2005).

       A trial court may revoke a diversionary sentence upon finding by a preponderance of
the evidence that the defendant has violated the conditions of his release. Tenn. Code Ann.

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§ 40-35-311(e). A trial court is not required to find that the violation occurred beyond a
reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). 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)).
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).

        While we acknowledge that the trial court admitted uncertainty about its ability to
sentence the Defendant anew, we note that the trial court considered all of the necessary
sentencing principles in arriving at its determination. Moreover, the trial court sentenced the
Defendant to the maximum term allowable for the conviction offense. The Defendant
admitted to the violations of his diversionary sentence but asked the trial court to give him
another chance. The record more than supports the trial court’s decision to revoke his
diversionary sentence and sentence the Defendant to a period of total confinement. The
Defendant violated the conditions of his release after having been given a second chance.
We conclude that the trial court exercised appropriate discretion in arriving at its
determination and that the trial court considered all of the necessary principles in arriving at
its determination. Accordingly, the judgment of the trial court is affirmed.

                                       CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                                    ___________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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