            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         AUGUST 1998 SESSION
                                                    September 18, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,             )
                                )    C.C.A. NO. 01C01-9705-CC-00167
            Appellee,           )
                                )    MONTGOMERY COUNTY
VS.                             )
                                )    HON. JOHN H. GASAWAY III,
MELVIN WAYNE ARCHULETA,         )    JUDGE
                                )
            Appellant.          )    (Sentencing)



FOR THE APPELLANT:                   FOR THE APPELLEE:


J. TIMOTHY STREET                    JOHN KNOX WALKUP
136 Fourth Ave., South               Attorney General & Reporter
Franklin, TN 37064
    (On Appeal)                      GEORGIA BLYTHE FELNER
                                     Asst. Attorney General
MICHAEL JONES                        Cordell Hull Bldg., 2nd Fl.
Public Defender                      425 Fifth Ave., North
                                     Nashville, TN 37243-0493
COLLIER GOODLETT
Asst. Public Defender                JOHN W. CARNEY
109 South Second St.                 District Attorney General
Clarksville, TN 37040
    (At Trial)                       WILLIAM CLOUD
                                     Asst. District Attorney General
                                     204 Franklin St., Suite 200
                                     Clarksville, TN 37040




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                     OPINION



              The defendant was indicted for theft of property over five hundred dollars

($500) in value. He pled guilty to theft of property less than five hundred dollars ($500).

Following a sentencing hearing, the trial court sentenced the defendant to eleven months

and twenty-nine days, to serve six months with the balance probated. The defendant

now appeals and argues that the trial court erred by not suspending his entire sentence.

After a review of the record and applicable law, we find that the trial court did not err in

denying the defendant’s request for probation. The judgment of the court below is

affirmed.



              In the summer of 1995, the defendant noticed several tire rims outside of

Huff’s Tractor Service. He then took the rims and several days later he attempted to sell

the rims to Friendly Tire. Friendly Tire noticed markings on the rims indicating the rims

were the same rims Friendly Tire had sent to Huff’s Tractor Service for repair. Friendly

Tire became suspicious and notified Mr. Huff of the attempted sale.               Mr. Huff

subsequently reported the incident to the police.



              When a defendant complains of his or her sentence, we must conduct a de

novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of

showing that the sentence is improper is upon the appealing party. T.C.A.

§ 40-35-401(d) Sentencing Commission Comments. This presumption, however, “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).




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              The defendant complains that the court erred in not granting his request for

full probation. In determining whether the defendant should be granted probation, the

court must consider the defendant’s criminal record, social history, present physical and

mental condition, the circumstances of the offenses, the deterrent effect upon the

criminal activity of the accused as well as others, and the defendant’s potential for

rehabilitation. State v. Bonestel, 871 S.W.2d 163, 169 (Tenn. Crim. App. 1993).



              Based on the lengthy criminal record revealed in the presentence report

and the absence of a reasonable expectation of rehabilitation, the judge denied

probation. The trial judge specifically stated that, in light of the prior convictions, there

was no reason for the court to believe that a probated sentence would bring about

rehabilitation. The trial judge concluded that the defendant appeared to be incapable of

being rehabilitated. The evidence presented fully supports these findings.



       The defendant further contends that the trial court erred in failing to note on the

record what enhancement and mitigating factors, if any, were relied on in the decision not

to grant probation. This contention is without merit. This Court has previously held the

Criminal Sentencing Reform Act does not require trial judges to explicitly list on the record

applicable enhancing and mitigating factors in misdemeanor cases. State v. Loden, 920

S.W.2d 261, 266 (Tenn. Crim. App. 1995).



              In sum, the evidence presented fully supports the trial court’s findings.

Furthermore, these findings support the trial court’s conclusion that probation is not

proper for this defendant. The judgment of the trial court is therefore affirmed.




                                                  ______________________________
                                                  JOHN H. PEAY, Judge




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CONCUR:



______________________________
THOMAS T. W OODALL, Judge



______________________________
L. TERRY LAFFERTY, Special Judge




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