State v. Brian Thomas Kluever

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY 1999 SESSION March 10, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE ) C.C.A. NO. 03C01-9805-CC-00170 ) Appellee, ) BLOUNT COUNTY ) v. ) Hon. D. Kelly Thomas, Judge ) BRIAN THOMAS KLUEVER, ) ) (Denial of Full Probation) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

JULIE MARTIN (On Appeal) JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter P. O. Box 426 Knoxville, TN 37901-0426 GEORGIA BLYTHE FELNER Counsel for the State MACK GARNER (At Trial) Criminal Justice Division District Public Defender Cordell Hull Bldg., Second Floor 419 High St. 425 Fifth Ave. North Maryville, TN 37804 Nashville, TN 37243-0493

MICHAEL L. FLYNN District Attorney General

EDWARD BAILEY, JR. Assistant District Attorney General 363 Court St. Maryville, TN 37804

AFFIRMED PURSUANT TO RULE 20

OPINION FILED: ________________

JAMES CURWOOD WITT, JR., JUDGE OPINION

The defendant, Brian Thomas Kluever, appeals pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure from the trial court’s denial of full

probation. The defendant pleaded guilty to felony evading arrest, to driving on a

suspended license (second offense) and driving while under the influence (first

offense). As part of the plea agreement, the defendant agreed to an effective

sentence of one year, but the manner of service was left to the discretion of the

trial judge. After a sentencing hearing, the trial court ordered the defendant to

serve 120 days in jail with the balance of the sentence to be served on probation.

The defendant will be eligible for work release after serving 48 hours.

One issue is presented for review. The defendant contends that

after a 48-hour period of incarceration and an alcohol treatment program, he

should be allowed to serve the balance of the 120 days on the weekend. This

court has conducted a de novo review of the record pursuant to Tennessee

Code Annotated section 40-35-401(d). We conclude that the record supports

the trial court’s findings.

The trial court denied full probation after the service of the

minimum sentence because the defendant had an extensive criminal record,

because he had previously received probated sentences, and because he had

been convicted of two offenses while he was on bond for these charges. The

trial judge concluded that the defendant’s prospects for rehabilitation were very

slim due to his abuse of alcohol and drugs.

This court has read the briefs of the parties and the law governing

the issue presented for review and concludes that no error of law requiring

2 reversal of the judgment is apparent on the record and that an opinion in this

case would have no precedential value . Therefore, we affirm the judgment of

the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

__________________________ JAMES CURWOOD WITT JR., Judge

CONCUR:

______________________________ GARY R. WADE, Presiding Judge

______________________________ NORMA McGEE OGLE, Judge