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State v. Snodgrass5/5/1999
presumption of alternative sentencing absent evidence to the contrary. Tenn. Code Ann. § 40-35-102(5), (6) (1997). However, this presumption may be rebutted by "evidence to the contrary." Tenn. Code Ann. § 40-35-102(6); see also State v. Bingham, 910 S.W.2d 448, 454 (Tenn. Crim. App. 1995). Guidance as to what constitutes evidence to the contrary may be found in Tenn. Code Ann. § 40-35-103(1) (A-C). If it is shown that the appellant has a long history of criminal conduct, that the appellant has not been rehabilitated with less restrictive methods, or that confinement is necessary to avoid depreciating the seriousness of the offense or to provide an effective deterrence to others, alternative sentences may be denied. Id. See also Bingham, 910 S.W.2d at 454 (citing Ashby, 823 S.W.2d at 169). Finally, the defendant's potential or lack of potential for rehabilitation should be considered in determining whether he should be granted an alternative sentence. Tenn. Code Ann. § 40-35-103(5). The appellant contends that he has demonstrated his potential for rehabilitation by taking the required classes to receive a driver's license in Florida.
In the instant case, the trial court found that the presumption for an alternative sentence was rebutted by the appellant's prior record of driving offenses. We agree. The record demonstrates that the appellant has one prior conviction for this same offense and five misdemeanor driving offenses. Measures less restrictive than confinement have frequently or recently been applied unsuccessfully to the defendant. Tenn. Code Ann. § 40-35-103(1)(C). Moreover, this appellant has shown blatant disregard for the laws of this State by continuing to drive his vehicle after loss of his driving privilege. We conclude that the record contains more than sufficient "evidence to the contrary" to rebut the presumption favoring the alternative sentencing option of community corrections.
The judgment of the trial court is affirmed.
DAVID G. HAYES, Judge
CONCUR: JOSEPH M. TIPTON, Judge L. T. LAFFERTY, Senior Judge.
Page 1 2 Tennessee DUI Attorneys
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