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State v. Whaley5/21/2003
nt case, "shall be confined in the county jail or workhouse for not less than forty-eight (48) hours nor more than eleven (11) months and twenty-nine (29) days."
The appellant essentially argues that the trial court erred in imposing any amount of confinement above the statutory minimum; in other words, the appellant argues that she should have received total probation. The trial court has the authority to place a misdemeanant on probation either after service of a portion of the sentence in confinement or immediately after sentencing. Tenn. Code Ann. § 40-35-302(e)(1)(2) (1997). However, we note that, while certain Class C, D, or E offenders are entitled to a presumption in favor of probation, the appellant is entitled to no such presumption regarding her misdemeanor sentences. See State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim. App. 1995). Our supreme court has observed that " n addition to the statutory considerations for issuing sentences of confinement, the misdemeanor sentencing statute merely requires a trial judge to consider enhancement and mitigating factors when calculating the percentage of a misdemeanor sentence to be served in confinement." Troutman, 979 S.W.2d at 274.
Regardless, an appellant seeking full probation bears the burden of establishing her suitability for full probation, regardless of whether she is entitled to the statutory presumption favoring alternative sentencing. State v. Boggs, 932 S.W.2d 467, 477 (Tenn. Crim. App. 1996); see also Tenn. Code Ann. § 40-35-303(b) (1997). To prove her suitability, the appellant must establish that granting full probation will "`subserve the ends of justice and the best interest of both the public and the [appellant].'" State v. Dykes, 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1 (Tenn. 2000). Moreover,
n determining one's suitability for full probation, the court may consider the circumstances of the offense, the [appellant's] potential or lack of potential for rehabilitation, whether full probation will unduly depreciate the seriousness of the offense, and whether a sentence other than full probation would provide an effective deterrent to others likely to commit similar crimes. Boggs, 932 S.W.2d at 477.
As we noted earlier, for her DUI conviction, the appellant received a sentence of eleven months and twenty-nine days with sixty days to be served in confinement. The trial court allowed the appellant to receive "2 for 1 credit," making the effective sentence of confinement thirty days. The balance of the sentence was to be served on probation. Additionally, the trial court imposed a concurrent sentence of six months for the assault conviction with thirty days to be served in confinement and the balance on probation.
At the sentencing hearing, the trial court stated:
So in treating her the same as I would anybody else, anybody else with this many prior offenses for intoxicating type offenses and especially driving under the influence , I would feel like deserved more than the minimum sentence for a first offender, and that's what the jury found her guilty of. By the same token, it's not sufficient to lock her up and throw away the key, but I do feel like something needs to get [the appellant's] attention to let her know that - I would think as many times as many brushes with the law that she's had for alcoholic type offenses, I can't imagine her being in a car with someone who is drunk and driving and drinking herself. I just can't imagine that at all, as many scrapes, as many close calls as she's had. So I do feel like she should serve more than the minimum 48- hour sentence.
Thus, it is clear that th
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