      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        JUNE 1997 SESSION        FILED
                                                    July 18, 1997

                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
STATE OF TENNESSEE,             )
                                ) C.C.A. No. 02C01-9608-CR-00275
      Appellee,                 )
                                ) Shelby County
V.                              )
                                ) Honorable Bernie Weinman, Judge
                                )
WILLIAM BELL,                   ) (Sentencing - Habitual Motor Vehicle
                                ) Offender)
      Appellant.                )




FOR THE APPELLANT:                 FOR THE APPELLEE:

Larry E. Fitzgerald                Charles W. Burson
Attorney at Law                    Attorney General & Reporter
22 N Second Street, Suite 410
Memphis, TN 38103                  Georgia Blythe Felner
                                   Counsel for the State
                                   Criminal Justice Division
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   William L. Gibbons
                                   District Attorney General

                                   Reginald R. Henderson
                                   Assistant District Attorney General
                                   201 Poplar Avenue, Suite 301
                                   Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                OPINION
            The appellant, William Bell, pled guilty to the unlawful possession of a

handgun and to unlawfully operating a motor vehicle while being a habitual motor

vehicle offender. He received an effective sentence of one year. He appeals,

contending the trial court erred in failing to suspend his sentence and in denying

him probation. Upon review, we affirm the judgment of the trial court.1



            Tennessee Code Annotated § 40-35-103 (1)(A)-(C) (1990) sets out

sentencing considerations which are guidelines for determining whether or not a

defendant should be incarcerated. These include: (1) the need to protect

society by restraining a defendant having a long history of criminal conduct; (2)

the need to avoid depreciating the seriousness of the offense; and (3) the

concept that confinement is particularly appropriate to deter others likely to

commit similar offenses. Tenn. Code Ann. § 40-35-103 (1)(A)-(C) (1990). In

reviewing a grant or denial of probation, this Court also considers (1) the

circumstances of the offense; (2) the defendant’s criminal record; (3) his/her

social history; (4) present physical and mental condition; and (5) the deterrent

effect of the sentence. State v. Charlton, 746 S.W.2d 467 (Tenn. Crim. App.

1987). This Court has previously determined that a negative finding of any one

of these factors is sufficient to support a denial of probation. State v. Baron, 659

S.W.2d 811, 815 (Tenn. Crim. App. 1983). We have held that an appellant's

lack of candor at the sentencing hearing is sufficient to justify the denial of an

alternative sentence. State v. Chrisman, 885 S.W.2d 834, 840 (Tenn. Crim.

App. 1994); State v. Neeley, 678 S.W.2d 48 (Tenn. 1984). Candor is probative

on the issue of amenability to rehabilitation, the impetus behind probation.




            1
              The state argues that the court's power to suspend the appellant's sentence is statutorily restricted by Tenn. Code
Ann. § 55-10-616(c) (1993). This provision states that the court has no power to suspend a sentence of a person convicted of
operating a motor vehicle while in violation of a court order. In State v. Rick y Fife, No. 03C01-9401-CR-00036, Blount Co.
(Tenn. Crim. App. June 15, 1995), this Court held that the 1989 Sentencing Reform Act superseded all former provisions and
that a motor vehicle offender's felony sentence could be suspended pursuant to Tenn. Code Ann. § 40-35-303(a) (1990). We,
ho we ve r, inv estig ate d th is issu e. O ur re sea rch re ve als th at T en n. C od e A nn . § 5 5-1 0-6 16 (c) w as e na cted at th e sa m e tim e
as T en n. C od e A nn . § 4 0-3 5-3 03 (a). P are nth etica lly, this p an el qu estio ns w he the r the Ge ne ral A sse m bly int en de d to im plicitly
repeal Section 55-10-616(c). However, as demonstrated by our opinion in the instant case, regardless of whether a motor
vehicle offender is or is not eligible for alternative sentencing, such persons are certainly not always entitled to alternative
sen tenc ing.


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Appellants’ dishonesty with the trial court and with themselves reduces their

rehabilitative potential.



       The trial judge stated that he was denying the appellant's request for

alternative sentencing in order to deter the appellant and others from driving

when such conduct has been prohibited by court order. Furthermore, he felt the

appellant was not credible and had lied to the court throughout the entire

sentencing hearing. We find no error in this ruling.



       The record reveals that the appellant took his driving restrictions lightly.

He admitted to driving his vehicle on several occasions in violation of the court's

order. Based upon the appellant's lack of candor, the need to avoid depreciating

the seriousness of the offense, and the need for deterrence, the denial of

alternative sentencing was proper. Incarceration will insure the appellant's

compliance and hopefully enlighten him to the seriousness of his offense.



AFFIRMED.




                                           ________________________________
                                           PAUL G. SUMMERS, Judge


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CONCUR:




___________________________
DAVID H. WELLES, Judge




___________________________
JOE G. RILEY, Judge




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