State v. Tina Overstreet

• Court: Court of Criminal Appeals of Tennessee
• Decided: January 28, 1998
• Docket: 01C01-9704-CR-00131
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED DECEMBER 1997 SESSION January 28, 1998

STATE OF TENNESSEE, ) Cecil W. Crowson ) Appellate Court Clerk No. 01-C-01-9704-CR-00131 APPELLEE, ) ) Davidson County v. ) ) Thomas H. Shriver, Judge TINA MARIE OVERSTREET, ) ) (Sentencing) APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

Jay Norman John Knox Walkup Attorney at Law Attorney General & Reporter 213 Third Avenue, North 500 Charlotte Avenue Nashville, TN 37201 Nashville, TN 37243-0497

Georgia B. Felner Counsel for the State Cordell Hull Building, Second Floor 425 Fifth Avenue, North Nashville, TN 37243-0493

Victor S. Johnson District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201

John Zimmermann Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201

Pam Anderson Assistant District Attorney General Washington Square, Suite 500 222 Second Avenue, North Nashville, TN 37201

OPINION FILED: ______________________________

AFFIRMED

Joe B. Jones, Presiding Judge

OPINION The appellant, Tina Marie Overstreet (defendant), was convicted of two counts of

delivery of marijuana, Class E felonies, following her pleas of guilty to these offenses. The

trial court, finding the defendant was a standard offender, imposed a Range I sentence

consisting of a $2,000 fine and confinement for one (1) year in the Davidson County

Workhouse for each count pursuant to a plea agreement. It was further agreed the

sentences were to be served concurrently. The trial court ordered the defendant to serve

from November 22, 1996 to December 23, 1996 in the Metro County Jail. The balance of

the sentence is to be served on probation. In this court, the defendant contends the

“sentence of confinement imposed is excessive.” After a thorough review of the record,

the briefs submitted by the parties, and the law governing the issue presented for review,

it is the opinion of this court that the judgment of the trial court should be affirmed.

The defendant was twenty-nine years of age when she was sentenced. She is

married and three children were born to this union. The defendant and her husband were

separated when these offenses occurred.

According to the presentence report, the defendant has a tenth grade education.

Her work history is sporadic. She has been found guilty of three misdemeanors. The

presentence report indicates the defendant has been smoking marijuana since she was

sixteen years of age.

The defendant sold a pound of marijuana to an undercover police officer on two

separate occasions. Apparently a friend of the defendant, acting as a confidential

informant, arranged the sales.

The trial court did not discuss his reasons for requiring the defendant to serve

approximately thirty days in jail as required by the Tennessee Sentencing Reform Act of

1989. Therefore, this court will conduct a review of the record without a presumption of

correctness.

The record establishes the defendant has a previous history of prior convictions as

well as criminal behavior. Tenn. Code Ann. § 40-35-114(1)(1997 Repl.). This factor must

be considered, along with the fact the defendant was able to obtain the two pounds of

marijuana with relative ease. When asked by the undercover officer when she would like

to sell the two additional pounds of marijuana, she indicated her contact would be going

2 to Texas in the near future to purchase sixty-five pounds of marijuana. This indicated the

defendant was closely associated with her supplier.

The trial court did not abuse its discretion by requiring the defendant to serve

approximately thirty days of her sentence. Confinement is required to avoid depreciating

the seriousness of the offense. Tenn. Code Ann. § 40-35-103(1)(B)(1997 Repl.).

Confinement is also necessary to deter the defendant as well as others from engaging in

the sale of illicit narcotics, especially large quantities of illicit narcotics. Tenn. Code Ann.

§ 40-35-103(1)(B)(1997 Repl.). Finally, the defendant was granted probation in 1993.

These offenses occurred in 1996. The defendant continued to smoke marijuana. In short,

probation was not a motivation for the defendant to change her lifestyle of engaging in

criminal conduct. Tenn. Code Ann. § 40-35-103(1)(C)(1997 Repl.). This court is hopeful

the defendant will be able to rehabilitate herself and learn to be a productive citizen and

a good and loving mother to her children.

________________________________________ JOE B. JONES, PRESIDING JUDGE

CONCUR:

_____________________________________ PAUL G. SUMMERS, JUDGE

_____________________________________ WILLIAM M. BARKER, JUDGE