           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                          MARCH 1998 SESSION
                                                    FILED
                                                       May 14, 1998

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk

STATE OF TENNESSEE,         *      C.C.A. # 02C01-9705-CR-00198

             Appellee,      *      SHELBY COUNTY

VS.                         *      Honorable Carolyn Wade Blackett, Judge

RICKEY HAILEY,              *      (Vandalism; Attempted Burglary; Theft)

             Appellant.     *




For Appellant:                     For Appellee:

William D. Massey and              John Knox Walkup
R. Price Harris                    Attorney General & Reporter
3074 East Street
Memphis, TN 38128                  Janis L. Turner
                                   Assistant Attorney General
                                   Criminal Justice Division
                                   Cordell Hull Bldg., Second Floor
                                   425 Fifth Avenue, North
                                   Nashville, TN 37243-0493

                                   James Challen
                                   Assistant Attorney General
                                   Criminal Justice Complex, Suite 301
                                   201 Poplar Street
                                   Memphis, TN 38103




OPINION FILED: _____________________



AFFIRMED AS MODIFIED



GARY R. WADE, JUDGE
                                          OPINION

               The defendant, Rickey Hailey, pled guilty to vandalism under $500,

attempted burglary of a vehicle, and theft under $500. The trial court imposed

concurrent sentences of eleven months, twenty-nine days for each offense, to be

served in the workhouse. The judgment forms do not indicate the percentage of

service required before the defendant is eligible for work release or other

rehabilitative programs. See Tenn. Code Ann. § 40-35-302(d).



               In this appeal of right, the defendant contends that the trial court erred

by denying probation. The judgment of the trial court is affirmed, but modified to

reflect eligibility for release after ninety days.



               On July 25, 1995, the former girlfriend of the defendant was "beaten

like a dog" by Phillip Johnson. The defendant retaliated by attempting to enter and

then by vandalizing a truck at Johnson's residence with a baseball bat. He stole

rifles, shotguns, crossbows, and car stereo equipment from the truck, which the

defendant later learned belonged to Phillip Johnson's father, Larry Johnson.



               The next day, he turned himself in to authorities and cooperated in

locating the property of the victim. The defendant, who was nineteen when he

committed the crimes, acknowledged his actions were "stupid." He testified that he

would be willing to make restitution to the victim, although he admitted he had not

yet done so. After the incident, the defendant completed high school. At the time of

the sentencing hearing, he was employed and training to be a journeyman plumber.



               The defendant testified that his parents were in the process of divorce

at the time of the crimes. He attempted to qualify for anger management classes


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but learned his insurance coverage had expired.



              The defendant acknowledged that while he was on bail for these

crimes, he stole "a few fishing lures" from Wal-Mart and was later convicted of theft

under five-hundred dollars.



              The trial court denied probation because the defendant had taken the

law into his own hands, had not made restitution, and had a prior criminal history.

The trial judge ruled that in ninety days, the defendant could petition for release with

the remainder of the sentence to be served on probation. Defense counsel's

request for a ruling "one way or another" on the jail term to be served before the

grant of probation was denied.



              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). 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). The

Sentencing Commission Comments provide that the burden is on the defendant to

show the impropriety of the sentence.



              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


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potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -

210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).



              Among the factors applicable to the defendant's application for

probation are the circumstances of the offense, the defendant's criminal record,

social history, and present condition, and the deterrent effect upon and best interest

of the defendant and the public. State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978).

With certain statutory exceptions, none of which apply here, probation must be

automatically considered by the trial court if the sentence imposed is eight years or

less. Tenn. Code Ann. § 40-35-303(a), (b).



              Alternative sentencing issues must be determined by the facts and

circumstances of the individual case. State v. Moss, 727 S.W.2d 229, 235 (Tenn.

1986). "[E]ach case must be bottomed upon its own facts." State v. Taylor, 744

S.W.2d 919, 922 (Tenn. Crim. App. 1987).



              In misdemeanor sentencing, a separate sentencing hearing is not

mandatory but the court is required to provide the defendant with a reasonable

opportunity to be heard as to the length and manner of the sentence. Tenn. Code

Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance

with the principles, purposes, and goals of the Criminal Sentencing Reform Act of

1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902 S.W.2d

391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to an

authorized determinant sentence with a percentage of that sentence designated for

eligibility for rehabilitative programs. Generally, a percentage of not greater than

75% of the sentence should be fixed for a misdemeanor offender; however, a DUI

offender may be required to serve the full 100% of his sentence. Palmer, 902


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S.W.2d at 393-94. In determining the percentage of the sentence, the court must

consider enhancement and mitigating factors as well as the legislative purposes and

principles related to sentencing. Id.



              Upon service of that percentage, the administrative agency governing

the rehabilitative programs determines which among the lawful programs available is

appropriate. The trial court retains the authority to place the defendant on probation

either immediately or after a term of periodic or continuous confinement. Tenn.

Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider

public or private agencies for probation supervision prior to directing supervision by

the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing

statute is designed to provide the trial court with continuing jurisdiction in

misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the

felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,

885 S.W.2d 829 (Tenn. Crim. App. 1994).



              In our view, the trial court properly required a period of incarceration.

That the defendant committed a theft while on bail for these offenses suggests

measures less restrictive than confinement have unsuccessfully been applied to the

defendant. See Tenn. Code Ann. § 40-35-103(1)(C). Under these circumstances,

we cannot conclude the trial court erred by ordering a period of confinement.



              The Act requires courts to "fix a percentage of the sentence which the

defendant shall serve" before being eligible for probation. Tenn. Code Ann. § 40-

35-302(d). Only DUI sentences may be classified at one-hundred percent. Other

offenders may be required to serve up to seventy-five percent before becoming

eligible for release programs. See Palmer, 902 S.W.2d at 393-94; Tenn. Code Ann.


                                            5
§ 40-35-302(d). Here, the trial court failed to indicate on the judgment form the

percentage of service. Generally, "[i]f no percentage is expressed in the judgment,

the percentage shall be considered zero percent (0%)." Tenn. Code Ann. § 40-35-

302(d). In this case, however, the trial court clearly did not intend service of zero

percent.



              The defendant's social history and present condition weigh in favor of

a shorter term of incarceration. After commission of these offenses, the defendant

completed high school and was taking positive steps toward qualifying as a master

plumber. There was, however, significant damage to the victim's vehicle. The

defendant committed a theft while awaiting his trial on these charges. A sentence of

eleven months and twenty-nine days is appropriate. The defendant will be eligible

for release upon service of ninety days.



              The judgment of the trial court is affirmed as so modified.



                                           __________________________________
                                           Gary R. Wade, Judge

CONCUR:



(NOT PARTICIPATING)
Joe B. Jones, Judge



_______________________________
Jerry L. Smith, Judge




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