         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                           JANUARY 1999 SESSION
                                                         March 10, 1999

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE             )    C.C.A. NO. 03C01-9805-CC-00170
                               )
      Appellee,                )      BLOUNT COUNTY
                               )
v.                             )      Hon. D. Kelly Thomas, Judge
                               )
BRIAN THOMAS KLUEVER,          )
                               )      (Denial of Full Probation)
      Appellant.               )



FOR THE APPELLANT:                    FOR THE APPELLEE:

JULIE MARTIN (On Appeal)              JOHN KNOX WALKUP
Attorney at Law                       Attorney General & Reporter
P. O. Box 426
Knoxville, TN 37901-0426
                                      GEORGIA BLYTHE FELNER
                                      Counsel for the State
MACK GARNER (At Trial)                Criminal Justice Division
District Public Defender              Cordell Hull Bldg., Second Floor
419 High St.                          425 Fifth Ave. North
Maryville, TN 37804                   Nashville, TN 37243-0493

                                      MICHAEL L. FLYNN
                                      District Attorney General

                                      EDWARD BAILEY, JR.
                                      Assistant District Attorney General
                                      363 Court St.
                                      Maryville, TN 37804



AFFIRMED PURSUANT TO RULE 20



OPINION FILED:     ________________


JAMES CURWOOD WITT, JR.,
JUDGE
                                      OPINION


               The defendant, Brian Thomas Kluever, appeals pursuant to Rule 3

of the Tennessee Rules of Appellate Procedure from the trial court’s denial of full

probation. The defendant pleaded guilty to felony evading arrest, to driving on a

suspended license (second offense) and driving while under the influence (first

offense). As part of the plea agreement, the defendant agreed to an effective

sentence of one year, but the manner of service was left to the discretion of the

trial judge. After a sentencing hearing, the trial court ordered the defendant to

serve 120 days in jail with the balance of the sentence to be served on probation.

The defendant will be eligible for work release after serving 48 hours.



               One issue is presented for review. The defendant contends that

after a 48-hour period of incarceration and an alcohol treatment program, he

should be allowed to serve the balance of the 120 days on the weekend. This

court has conducted a de novo review of the record pursuant to Tennessee

Code Annotated section 40-35-401(d). We conclude that the record supports

the trial court’s findings.



               The trial court denied full probation after the service of the

minimum sentence because the defendant had an extensive criminal record,

because he had previously received probated sentences, and because he had

been convicted of two offenses while he was on bond for these charges. The

trial judge concluded that the defendant’s prospects for rehabilitation were very

slim due to his abuse of alcohol and drugs.



               This court has read the briefs of the parties and the law governing

the issue presented for review and concludes that no error of law requiring

                                           2
reversal of the judgment is apparent on the record and that an opinion in this

case would have no precedential value . Therefore, we affirm the judgment of

the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.




                                         __________________________
                                         JAMES CURWOOD WITT JR., Judge

CONCUR:




______________________________
GARY R. WADE, Presiding Judge



______________________________
NORMA McGEE OGLE, Judge




                                        3
