         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                     NOVEMBER 1997 SESSION
                                                 FILED
                                                  January 20, 1998

                                                 Cecil Crowson, Jr.
STATE OF TENNESSEE,            )                 Appellate C ourt Clerk
                               )    NO. 02C01-9611-CR-00429
      Appellee,                )
                               )    SHELBY COUNTY
VS.                            )
                               )    HON. ARTHUR T. BENNETT,
RANDY C. FIVEASH,              )    JUDGE
                               )
      Appellant.               )    (Denial of Alternative Sentencing)



FOR THE APPELLANT:                  FOR THE APPELLEE:

GERALD D. SKAHAN                    JOHN KNOX WALKUP
140 North Third Street              Attorney General and Reporter
Memphis, TN 38103-2007
                                    DEBORAH A. TULLIS
                                    Assistant Attorney General
                                    Cordell Hull Building - 2nd Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    THOMAS D. HENDERSON
                                    Assistant District Attorney General
                                    201 Poplar Avenue, Ste. 301
                                    Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED PURSUANT TO RULE 20



JOE G. RILEY,
JUDGE
                                      ORDER



       The appellant, Randy C. Fiveash, entered a plea of guilty to the offense of

driving in violation of the Habitual Motor Vehicle Offenders (HMVO) Act, a Class E

felony. He received a sentence of one (1) year as a Standard Offender with the

issue of alternative sentencing reserved for judicial determination. The sole issue

presented in this appeal is whether the trial court erred in denying community

corrections. We AFFIRM the sentence of the trial court pursuant to Rule 20 of the

Tennessee Court of Criminal Appeals.



       On July 20, 1995, appellant drove in violation of the HMVO Act. He pled

guilty to this offense and asked for alternative sentencing in the form of placement

in the community corrections program. Appellant claimed that he drove that day

because his wife was sick and was unable to take him to work. He admitted he was

an alcoholic, but that he had begun attending Alcoholics Anonymous and had

stopped drinking. He admitted using marijuana four (4) days prior to his interview

with the community corrections officer who prepared the pre-sentence evaluation.



       The pre-sentence evaluation reveals that the appellant had numerous prior

convictions during the period of 1986 through 1994, including four (4) D.U.I.

convictions, five (5) reckless driving convictions, and five (5) convictions for driving

while license suspended, canceled, or revoked (DWLSCR). In addition, he had a

prior probation violation as well as other misdemeanor convictions. After the last

DWLSCR conviction, appellant was declared an HMVO on January 25, 1994.



       Although appellant is entitled to a presumption of alternative sentencing, his

prior record supports the trial court’s decision that he was not an appropriate

candidate. The trial court called appellant’s driving record “horrendous” and noted

that he could have killed himself or others. The court based its decision in part

upon appellant’s previous violation of probation and his smoking marijuana while



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disposition of the instant offense was pending. The court also found that to grant

community corrections in spite of all these factors would depreciate the seriousness

of the offense.



       After thoroughly reviewing the record, the briefs, and the law governing the

issue presented by the defendant, we conclude that the trial court did not err by

denying alternative sentencing. Accordingly, pursuant to Rule 20 of the Tennessee

Court of Criminal Appeals, we AFFIRM the sentence of the trial court.




                                          JOE G. RILEY, JUDGE



CONCUR:




GARY R. WADE, JUDGE




DAVID G. HAYES, JUDGE




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