dissenting.
I dissent because, based on the ruling that the court took into account inadmissible evidence in determining to revoke probation and in fashioning a modified sentence, the case should be remanded for the trial court’s reconsideration of the modified sentence. Since this court cannot substitute its judgment for that of a trial court in determining what is an appropriate sentence when a defendant has violated probation, it cannot assume that the court would have set the *894same sentence had it not considered the alleged infractions for which there was no competent evidence.
Decided March 15, 1990. Kathleen J. Anderson, for appellant. Harry N. Gordon, District Attorney, for appellee.Appellant had originally negotiated pleas of guilty to entering an auto and theft by taking of an auto. He had been sentenced to serve three years, to be followed by five years of probation with certain conditions. After imprisonment, probation was started but was revoked and appellant was sent to the local diversion center. Alleged violations in that environment brought another revocation hearing, and we have now ruled that “a majority of the allegations” were inadequately proven. Thus the modification of sentence must be based on the failure to submit to a urine test and an instance of disorderly conduct the next day; allegations concerning employment and a staff member’s order remain unproven and are not to be taken into account. Whether the appropriate disposition for the properly established violations is to be the same, i.e., 120 days at the detention center and then residence at a different diversion center, is problematic. The decision is up to the sentencing court, to be reached after a consideration of the proved violations which were proved, the circumstances presented, and the available resources.
By affirming without an opportunity for the trial court to exercise its own judgment to tailor the sentence to fit the proved allegations of misbehavior, this court usurps the trial court’s function. OCGA §§ 42-8-34.1 (b); 42-8-38 (c). This is not to say that the trial court could not impose the same terms upon reconsideration.
Allen v. State, 172 Ga. App. 323 (323 SE2d 242) (1984), is distinguishable, at least in that the trial court revoked Allen’s probation altogether. In this case the court continued defendant on probation and transferred him to a certain detention center for 120 days, with the balance of the sentence remaining in accordance with the original sentence as previously modified, except that his next residence following the detention center was to be a different and particular diversion center.
Also in Allen, the burden of proof of violation was only “slight evidence,” whereas now it is “preponderance of the evidence.” OCGA § 42-8-34.1 (a).