State v. John Tidwell

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 21, 1998
• Docket: 01C01-9702-CC-00063
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED DECEMBER 1997 SESSION January 21, 1998

Cecil W. Crowson Appellate Court Clerk ) STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9702-CC-00063 Appellee, ) ) Hickman County V. ) ) Honorable Cornelia A. Clark, Judge ) JOHN E. TIDWELL, ) (Sentencing) ) Appellant. )

FOR THE APPELLANT: FOR THE APPELLEE:

John H. Henderson John Knox Walkup District Public Defender Attorney General & Reporter

Elaine B. Beeler Georgia Blythe Felner Assistant Public Defender Counsel for the State P.O. Box 68 450 James Robertson Parkway Franklin, TN 37065-0068 Nashville, TN 37243-0493

Joseph D. Baugh District Attorney General

Ronald Davis Assistant District Attorney General P.O. Box 937 Franklin, TN 37065

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS, Judge

OPINION The appellant, John E. Tidwell, pled guilty to aggravated burglary and

theft of property over $1000 in June 1996. The parties agreed that the

defendant would receive a sentence of three years on the aggravated burglary

and two years on the theft. The court then sentenced the appellant to serve five

years on probation, with seventy-five days to be served in jail and 300 hours of

community service work. The appellant was also ordered to pay restitution.

The appellant’s sole issue on appeal is whether the trial court should have

ordered him to serve seventy-five days in jail. We affirm.

On January 17, 1996, the appellant and three juveniles sought out a

house to burglarize. After determining that no one was at home, the appellant

and these juveniles broke into the home of Gerald Breece and took items

belonging to him. After he was arrested, the appellant confessed to the crime

and helped police locate some of the stolen items.

The appellant argues that he is a suitable candidate for full probation. He

contends that he has no criminal history before these offenses, although he

admitted to underage drinking and smoking marijuana. He also asserts that he

is working toward obtaining his GED. He further notes that he admitted his

involvement in the burglary and assisted the police in recovering the stolen

items.

The state maintains that the trial court properly sentenced the appellant.

First, although the appellant was ordered to serve seventy-five days in jail, only

thirty days were to be served day-for-day, with the remainder to be served in 48-

hour increments. This plan was created so that the appellant could maintain

employment.

-2- When an appellant challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-

401(d) (1990). However, this presumption is conditioned on an affirmative

indication in the record that the trial court considered the sentencing principles

and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).

The appellant bears the burden of showing that the sentence was

improper. Id. In determining whether the appellant has met this burden, this

Court must consider (a) the evidence adduced at trial and the sentencing

hearing; (b) the presentence report; (c) the principles of sentencing; (d) the

arguments of counsel; (e) the nature and characteristics of the offense; and (f)

the appellant’s potential or lack of potential for rehabilitation or treatment. Tenn.

Code Ann. §§ 40-35-103(5), -210(b) (1990).

From the record before us, the trial court did indicate that the appellant

was an appropriate candidate for alternative sentencing, just not full probation.

The court denied full probation because of the appellant’s inconsistent work

history, including a three-month period in which he did not work at all; the fact

that he had not obtained his GED; and his past criminal behavior, which included

underage drinking and marijuana usage. In denying full probation, the trial court

noted that some amount of incarceration was necessary to avoid depreciating

the seriousness of the offense. Tenn. Code Ann. § 40-35-103(1) (1990).

After carefully reviewing the record before us, we conclude that the trial

court did not err in denying full probation to the appellant. Probation is a

privilege, not a right. We affirm the trial judge’s decision.

-3- ______________________________ PAUL G. SUMMERS, Judge

CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ WILLIAM M. BARKER, Judge

-4-