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State v. Barnes12/10/2001
conduct does not, alone, make the offense sufficiently violent to justify a denial of probation nor can it be viewed as sufficient evidence to overcome § 40- 35-102(6)." State v. Butler, 880 S.W.2d 395, 400-01 (Tenn. Crim. App. 1994).
We conclude that the trial court's findings as to the probation are entitled to a presumption of correctness because the record reflects that in denying probation, the trial court considered the relevant facts, circumstances, and sentencing principles in this case. Although the defendant is correct in that death of the victim alone is not sufficient justification for denying probation, the sentencing hearing transcript shows that the trial court considered many factors and determined that the facts and circumstances of the offense, the defendant's criminal history, and the need to avoid depreciating the seriousness of the offense warranted denying full probation. The evidence demonstrates that the trial court followed the requirements of the law and exercised solid judgment in its determination that the defendant should serve ten months of his sentence in confinement.
As for the defendant's contention that the trial court improperly considered his speeding tickets and prior marijuana use in denying full probation, we disagree. Moreover, we believe that the facts and circumstances of this case warrant denying full probation. The defendant admitted to driving a car while legally drunk and causing the victim's death. As pointed out by the trial court, the defendant put the lives of his two other passengers in jeopardy. Therefore, we hold that the defendant failed to show that the trial court's sentence of ten-months incarceration was improper.
We must note, though, that the trial court ordered the defendant to serve his ten-month confinement "day for day." A defendant sentenced to the county jail for less than one year is entitled to earn good conduct credits. See Tenn. Code Ann. § 41-2-111(b). This court has held that a trial court cannot deny a defendant this statutory right. See State v. James Kevin Underwood, E2000-09-1945-CCA-R3-CD, Washington County, slip op. at 5-6 (Tenn. Crim. App. Aug. 2, 2001) (holding that defendant sentenced to six months in jail, day for day, is entitled to earn good conduct credits); State v. Frank R. Clark, No. M2000-00862-CCA-R3-CD, Warren County, slip op. at 4 (Tenn. Crim. App. July 25, 2001), app. filed (Tenn. Sept. 13, 2001) (ordering driving under the influence sentence to be served in confinement at 100% cannot preclude applicable conduct credits). Therefore, the defendant's sentence of ten months confinement "day for day" does not operate to preclude applicable conduct credits.
In consideration of the foregoing and the record as a whole, we affirm the trial court's denial of judicial diversion and full probation.
JOSEPH M. TIPTON, JUDGE
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