                 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                  AT KNOXVILLE

                        STATE OF TENNESSEE v. AUDREY BLACK

                   Direct Appeal from the Circuit Court for Blount County
                     Nos. C-6528,6529,6530 D. Kelly Thomas , Judge



                     No. E1999-01391-CCA-R3-CD - Decided June 8, 2000


Defendant Audrey Black pled guilty to three counts of selling cocaine and she received concurrent
sentences of nine years for each conviction, with thirty days to be served in jail and eight years and
eleven months to be served in the Community Corrections Program. The trial court subsequently
transferred Defendant from the Community Corrections Program to probation. Thereafter, the trial
court revoked Defendant’s probation and ordered her to serve sixty days in jail with work release
eligibility, followed by the balance of her sentence on probation. Defendant contends that the trial
court erred when it revoked her probation and ordered her to serve sixty days in jail before returning
to probation. The judgment of the trial court is affirmed.

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

WOODALL , J. delivered the opinion of the court, in which TIPTON, J. and OGLE , J. joined.

Raymond Mack Garner, District Public Defender, and Shawn G. Graham, Assistant Public Defender,
Maryville, Tennessee, for the appellant, Orlando Malone at trial; Julie A. Rice, Knoxville,
Tennessee, for the appellant Orlando Malone on appeal.

Paul G. Summers, Attorney General and Reporter, R. Stephen Jobe, Assistant Attorney General,
Michael L. Flynn, District Attorney General, John Anderson Bobo, Jr., and Assistant District
Attorney General, for the appellee, State of Tennessee.


                                             OPINION

                                       I. BACKGROUND

        On June 23, 1992, Defendant pled guilty to three counts of selling cocaine. On July 31,
1992, the trial court sentenced Defendant as a Range I standard offender to concurrent terms of nine
years for each conviction, with thirty days to be served in jail and eight years and eleven months to
be served in the Community Corrections Program. On November 10, 1997, the trial court entered
an order which transferred Defendant from the Community Corrections Program to probation.
        On January 15, 1999; March 3, 1999; and March 4, 1999; probation violation reports were
filed which alleged that Defendant had violated her probation by being convicted of DUI, using
intoxicating substances, failing to seek ordered drug/alcohol treatment, failing to pay court costs, and
violating curfew. On June 14, 1999, the trial court conducted a probation revocation hearing.

       At the beginning of the revocation hearing, Defendant stipulated that she had violated her
probation by being convicted of DUI, using intoxicating substances, failing to seek ordered
drug/alcohol treatment, failing to pay court costs, and violating curfew.

        Defendant testified that after she was transferred to probation, she fell behind on the payment
of court costs because she had to care for ill family members. As a result of caring for these sick
relatives, Defendant experienced stress and her finances “went haywire.” On March 11, 1999, she
lost her job of five and one half years due to a misunderstanding about overtime work. Defendant
also testified that she had no immediate employment prospects.

       Defendant testified that after she lost her job and lost her insurance, she failed to complete
a drug and alcohol treatment program because she was not in a financial position to pay for
treatment. Defendant admitted that she had been using alcohol around the time that she committed
the DUI offense. In regard to the probation violations, Defendant testified that she had simply been
overwhelmed by dealing with her mother’s illness and subsequent death.

        Defendant testified on cross-examination that she had experienced difficulty in paying her
court costs while she was still in the Community Corrections Program toward the end of 1996, and
this difficulty resulted in the alteration of her payment schedule in order to accommodate her.
Defendant also admitted that she had previously been on probation for concealing stolen property.
The presentence report indicates that Defendant’s period of probation for that conviction had been
extended because of an allegation that she had violated probation by failing to perform community
service.

        At the conclusion of the revocation hearing, the trial court found that based on Defendant’s
stipulation, Defendant had violated the terms of her probation. The court then noted that Defendant
had performed well in the Community Corrections Program and she did have potential for
rehabilitation. The court then found that in the best interests of both Defendant and society,
Defendant should be ordered to serve sixty days in jail with work release eligibility before
completing the remainder of her sentence on probation.

                                           II. ANALYSIS

        Defendant contends that the trial court erred when it revoked her probation and ordered her
to serve sixty days in jail before returning to probation. We disagree.

      The circumstances upon which probation can be revoked are specified in Tennessee Code
Annotated section 40-35-311(e):


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        If the trial judge should find that the Appellant has violated the conditions of probation and
        suspension by a preponderance of the evidence, the trial judge shall have the right by order
        duly entered upon the minutes of the court, to revoke the probation and suspension of
        sentence and cause the Appellant to commence the execution of the judgment as originally
        entered, or otherwise in accordance with § 40-35-310; provided, that in case of such
        revocation of probation and suspension, the Appellant has the right to appeal.
Tenn. Code Ann. § 40-35-311(e) (Supp. 1999). The Tennessee Supreme Court has stated that under
this provision:
        The judgment of the trial court in this regard will not be disturbed on appeal unless it appears
        that there has been an abuse of discretion. In order for a reviewing court to be warranted in
        finding 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. The proof of a probation violation
        need not be established beyond a reasonable doubt, but it is sufficient if it allows the trial
        judge to make a conscientious and intelligent judgment.
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (citations omitted). Thus, “[t]he revocation of a
suspended sentence is committed to the sound judicial discretion of the trial judge, and his decision
on the matter will not be reversed on appeal unless it appears that the trial judge has acted arbitrarily
in the matter.” State v. Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App.1981) (citations
omitted).

        The trial court’s decision to revoke Defendant’s probation was clearly not an abuse of
discretion. Indeed, Defendant stipulated that she violated her probation by being convicted of DUI,
using intoxicating substances, failing to seek ordered drug/alcohol treatment, failing to pay court
costs, and violating curfew. This stipulation is substantial evidence to support the revocation order.
State v. Yvonne Burnette, No. 03C01-9608-CR-00314, 1997 WL 414979, at *2 (Tenn. Crim. App.,
Knoxville, July 25, 1997), app. denied, (Tenn. April 13, 1998).

         Defendant argues that even if the trial court correctly revoked her probation, the trial court
still erred when it failed to place her on intensive probation or place her back in the Community
Corrections Program in lieu of the sixty days of confinement. However, this Court has previously
held that “an accused, already on probation, is not entitled to a second grant of probation or another
form of alternative punishment” after a revocation of probation. State v. Roger Dale Vance, No.
03C01-9808-CC-00317, 1999 WL 692865, at *2 (Tenn. Crim. App., Knoxville, Aug. 31, 1999) (No
Rule 11 application filed). There is no question that when a defendant violates the conditions of his
or her probation, the trial court has the authority to revoke probation and impose the original
sentence. Tenn. Code Ann. §§ 40-35-310, -311 (1997 & Supp. 1999). In addition, the trial court
may also “impose any penalty less than or equal to that sentence originally imposed upon the
probationer.” Roger Dale Vance, 1999 WL 692865, at *2. Thus, the trial court clearly had the
authority to order Defendant to serve sixty days in jail with work release eligibility followed by the
remainder of the sentence on probation.

        Defendant also argues that the trial court’s order was completely arbitrary because the court
failed to consider her personal circumstances. However, the record indicates that in addition to

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considering the nature of Defendant’s probation violations, the trial court also considered
Defendant’s positive attributes, such as her past performance in the Community Corrections Program
and her potential for rehabilitation. Indeed, it is obvious that the trial court’s determination that
Defendant should serve only sixty days in confinement, rather than all of her remaining sentence,
was based on Defendant’s positive characteristics as well as her personal circumstances.

       In short, we conclude that the trial court did not abuse its discretion when it revoked
Defendant’s probation and ordered her to serve sixty days in jail followed by the remainder of the
sentence on probation. Accordingly, the judgment of the trial court is AFFIRMED.




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