 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Shelton12/17/2001
Assigned on Briefs October 2, 2001
The defendant, Clifton Shelton, pled guilty to simple possession of marijuana, a Class A misdemeanor. The trial court sentenced the defendant to 11 months and 29 days, requiring him to spend four months in a halfway house and the balance of his sentence on probation. The defendant argues that the trial court erred by failing to suspend his entire sentence. Because the trial court relied on the defendant's prior grant of judicial diversion in denying full probation, the judgment is modified and the cause is remanded to the trial court.
Tenn. R. App. 3; Judgment of the Trial Court Reversed; Cause Remanded
Gary R. Wade, P.J., delivered the opinion of the court, in which Joseph M. Tipton and Robert W. Wedemeyer, JJ., joined.
OPINION
The defendant, who was indicted for one count of possession of marijuana with intent to sell and one count of possession of marijuana with intent to deliver, both Class E felonies, entered a plea of guilt to one count of simple possession of marijuana, a Class A misdemeanor.
At the entry of his guilty plea, the defendant stipulated that, on November 4, 1998, he was sitting on the porch when officers arrived to execute a search warrant at the residence of a Mario Young. When the officers patted the defendant down, they found eight grams of marijuana in the pocket of his shirt.
At the sentencing hearing it was established that the defendant, age 32, was married and had three children. He had maintained employment throughout his adult life. He had no prior criminal record but some ten years before his arrest on these charges, he had successfully completed a judicial diversion program. See Tenn. Code Ann. § 40-35-313.
The state conceded that the defendant was a suitable candidate for probation but asked the trial court to require him to undergo frequent, random drug testing. The trial court granted probation, but ordered the defendant to spend four months in Project Whatever It Takes (WIT), a halfway house, as a further condition of probation. In this appeal, the defendant argues that the trial court erred by ordering placement in the halfway house as a condition of probation.
When there is a challenge to the length, range, or manner of service of a sentence, it is the duty of this court to conduct a de novo review with a presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d); see also State v. Troutman, 979 S.W.2d 271 (Tenn. 1991). This presumption is "conditioned upon the affirmative showing 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); see State v. Jones, 883 S.W.2d 597, 600 (Tenn. 1994). "If the trial court applies inappropriate factors or otherwise fails to follow the 1989 Sentencing Act, the presumption of correctness falls." State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of the sentence. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.
Our review requires an analysis of (1) the evidence, if any, received at the trial and sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; Sta
Page 1 2 3 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|