State v. Huff

760 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 483
CourtCourt of Criminal Appeals of Tennessee
DecidedJuly 25, 1988
StatusPublished
Cited by11 cases

This text of 760 S.W.2d 633 (State v. Huff) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Huff, 760 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 483 (Tenn. Ct. App. 1988).

Opinions

OPINION

JONES, Judge.

The defendant, Lillian Michelle Huff, entered pleas of guilty to four (4) counts of obtaining goods and merchandise exceeding $100.00 in value by means of a worthless check and one (1) count of obtaining goods and merchandise not exceeding $100.00 in value by means of a worthless check. Pursuant to the terms of a plea bargain agreement, the trial court sentenced the defendant as follows:

(a) A term of four (4) years in the Department of Correction for obtaining goods and merchandise exceeding $100.00 in value by means of a worthless check as alleged in Indictment No. 28744;
(b) A term of three (3) years in the Department of Correction for obtaining goods and merchandise exceeding $100.00 in value by means of a worthless check as alleged in the first and third counts of Indictment No. 28745 and Indictment No. 30764; and
(c) A term of eleven months and twenty-nine days in the Knox County Jail for obtaining goods and merchandise not exceeding $100.00 in value by means of a worthless check.

The trial court ordered the sentence in Indictment No. 28744 to be served consecutively to the sentence imposed for the offense alleged in the first count of Indictment No. 28745. The remaining sentences were ordered to be served concurrently. [635]*635In summary, the defendant received an effective sentence of seven (7) years.

The trial court conducted a lengthy sentencing hearing on the issue of whether the defendant’s sentences should be suspended and the defendant returned to society on probation. At the conclusion of the hearing, the trial court refused to suspend the defendant’s sentences. In addition, the trial court revoked the defendant’s bail and ordered that the defendant be transported to the Department of Correction to serve her sentences.

The defendant filed a motion in this Court pursuant to Rule 8, Tenn.R.App.P., seeking review of the trial court’s order revoking her bail and refusing to release her on bail pending appeal. This Court denied the motion.

The defendant timely filed a motion for modification of sentence pursuant to Rulé 35, Tenn.R.Crim.P. The motion asked the trial court to consider sentencing the defendant pursuant to the Community Corrections Act of 1985, place her under the supervision of the Knox County Community Alternative to Prison Program, and require that she submit to the intensive supervision program of the Department of Correction with appropriate guidelines and requirements. The trial court denied the motion without an evidentiary hearing notwithstanding a multitude of letters from employees of the Department of Correction and others that the defendant had been an excellent prisoner while confined in the Women’s Penitentiary. Thereafter, the defendant filed a request for reconsideration of the motion. The trial court denied this motion as well without the benefit of an evidentiary hearing.

ISSUES PRESENTED FOR REVIEW

The defendant has appealed as of right to this Court pursuant to Rule 3(b), Tenn.R. App.P., and T.C.A. § 40-35-402. She presents two issues for our review. First, the defendant contends the trial court erred in refusing to suspend her sentences and grant her probation. Second, the defendant contends the trial court erred in refusing to sentence her pursuant to the terms of the Tennessee Community Corrections Act of 1985, T.C.A. §§ 40-36-101, et seq., as requested in her motion for modification of sentence.

RULES GOVERNING DE NOVO REVIEW OF SENTENCES

When a defendant challenges the length, range, or the manner of service of a sentence, it is the duty of this Court to conduct a de novo review of the sentence without a presumption that the determinations made by the trial court are correct. T.C.A. § 40-35-402(d) (Supp.1987). See State v. Moss, 727 S.W.2d 229 (Tenn.1986); State v. Scott, 735 S.W.2d 825, 829 (Tenn.Crim.App.1987); State v. Smith, 735 S.W.2d 859, 863 (Tenn.Crim.App.1987); State v. Hammons, 737 S.W.2d 549, 553 (Tenn.Crim.App.1987); State v. Rhoden, 739 S.W.2d 6, 16 (Tenn.Crim.App.1987). This duty extends to sentencing issues concerning probation, see State v. Smith, supra, and the Community Corrections Act of 1985. State v. Taylor, 744 S.W.2d 919 (Tenn.Crim.App.1987). As this Court said in Taylor: “,..[T]his Court must review issues concerning the Community Corrections Act de novo pursuant to T.C.A. § 40-35-402(d) (Supp.1987).” 744 S.W.2d at 920. See also State v. Loretta James [Mendez], Sullivan County No. 798, January 1988 Session at Knoxville, opinion filed February 25, 1988 [available on WESTLAW, 1988 WL 15684].

In conducting a de novo review of sentences, this Court must consider (a) any evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the principles of sentencing, (d) the arguments of counsel relative to sentencing principles, (e) the nature and characteristics of the offense, (f) any mitigating and/or enhancing factors, (g) any statements made by the defendant in her own behalf, and (h) the defendant’s potential or lack of potential for rehabilitation or treatment. T.C.A. §§ 40-35-103 and 210. See State v. Moss, supra; State v. Smith, supra.

When the defendant raises an issue concerning the suspension of a sentence and probation, this Court must also consid[636]*636er the circumstances of the offense, the defendant's criminal record, social history, present physical and mental condition, and the deterrent effect upon other criminal activity. T.C.A. § 40-21-104(a)(1). See Stiller v. State, 516 S.W.2d 617 (Tenn.1974). Most, if not all, of these factors are to be considered in our de novo review of the sentences.

When the defendant raises an issue concerning sentencing pursuant to the Tennessee Community Corrections Act of 1985, T.C.A. § 40-36-101, et seq., this Court must also consider the criteria set forth in the Act. State v. Taylor, supra.

DE NOVO REVIEW OF PROBATION ISSUE

The defendant is twenty-five (25) years of age and has completed one year of college. The defendant was employed and she thoroughly enjoyed her employment. It appears the defendant’s employer is aware of her present plight, and the employer is willing to rehire the defendant when she is released from custody.

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Bluebook (online)
760 S.W.2d 633, 1988 Tenn. Crim. App. LEXIS 483, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-huff-tenncrimapp-1988.