 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Moore10/22/1999
esumed to be a favorable candidate for alternative sentencing, but the presumption of suitability for alternatives to confinement may be overcome by evidence to the contrary. Tenn. Code Ann. §§ 40-35-102(6); -103(1) (1997). The burden rests with the defendant to show that he should be placed on probation. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995).
Our analysis of the appropriateness of alternative sentencing includes consideration of the factors enumerated in code sections 40-35-210(b) and -103(5). One of these considerations is the "nature and circumstances of the criminal conduct involved." Tenn. Code Ann. § 40-35-210(b)(4) (1997); Ashby, 823 S.W.2d at 169. In addition, we utilize the considerations for ordering confinement that appear in section 40-35-103(1). One of these is semantically linked to the nature and circumstances of the offense. It is the consideration that confinement may be ordered when it is "necessary to avoid depreciating the seriousness of the offense." Tenn. Code Ann. § 40-35-103(1)(B) (1997).
The nexus between the nature and circumstances of the offense and sentencing to avoid depreciating the seriousness of the offense is well recognized. State v. Hartley, 818 S.W.2d 370, 375 (Tenn. Crim. App. 1991). The nature and circumstances of the offense may serve as the sole basis for denying probation when the acts are "especially violent, horrifying, shocking, reprehensible, offensive or otherwise of an excessive or exaggerated degree; and it would have to be clear that, therefore, the nature of the offense, as committed, outweighed all other factors. . . which might be favorable to a grant of probation." State v. Travis, 622 S.W.2d 529, 534 (Tenn. 1981); see also State v. Cleavor, 691 S.W.2d 541, 543 (Tenn. 1985). "This standard has essentially been codified in the first part of T.C.A. Section 40-35-103(1)(B) which provides for confinement if it is necessary to avoid depreciating the seriousness of the offense." Hartley, 818 S.W.2d at 375. Thus, the Travis qualifiers exist under the first clause of section 40-35-103(1)(B) to assist the court in determining when the need to avoid depreciating the seriousness of the offense overcomes the presumption of suitability for alternative sentencing.
Although the trial court made no specific reference to alternative sentencing in general or probation in particular, it made findings which implicitly equate to a Conclusion that the offense was especially shocking, reprehensible and offensive and that, accordingly, confinement is necessary to avoid depreciating the seriousness of the offense.
The court said:
The nature of the crime . . . is distressfully disturbing, that being trying to kill officers who were out there trying to do their jobs . . . . Mr. Moore, this is especially . . . heinous, because you were willing . . . to try to hold off these fellows who were there trying to do their job . . . . So, you are sentenced to five (5) years in the State Penitentiary.
The record supports the trial court's determinations resulting in the defendant's confinement in a penitentiary. We find no error in the sentences of confinement imposed by the trial court.
Finding no reversible error, we affirm the judgment of the trial court.
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
JOSEPH M. TIPTON, JUDGE
JOHN EVERETT WILLIAMS, JUDGE
Page 1 2 3 4 5 6 7 8 9 10 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|