          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                             JUNE SESSION, 1999
                                                        FILED
                                                          August 2, 1999
STATE OF TENNESSEE,                  )   C.C.A. NO. 02C01-9812-CR-00370
                                                      Cecil Crowson, Jr.
                                     )               Appellate Court Clerk
            Appellee,                )
                                     )   SHELBY COUNTY
V.                                   )
                                     )
                                     )   HON. ARTHUR T. BENNETT, JUDGE
WILL IE B. TAR TT,                   )
                                     )   (HABITUAL MOTOR
            Appe llant.              )   VEHICL E OFF ENDE R)



FOR THE APPELLANT:                       FOR THE APPELLEE:

A. C. WHARTON                            PAUL G. SUMMERS
District Public Defender                 Attorney General & Reporter

JUANITA PEYTON                           J. ROSS DYER
Assistant Public Defender                Assistant Attorney General
Criminal Justice Center, Suite 201       2nd Floor, Cordell Hull Building
201 Poplar Avenue                        425 Fifth Avenue North
Memphis, TN 38103                        Nashville, TN 37243

                                         JOH N W. P IERO TTI
                                         District Attorn ey Ge neral

                                         LEE COFFEE
                                         Assistant District Attorney General
                                         Criminal Justice Center, Suite 301
                                         201 Poplar Avenue
                                         Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION

      The Defendant, Willie B. Tartt, appeals from the trial court’s denial of his

petition for alternative sente ncing in the fo rm of p robatio n cou pled w ith perio dic

confinem ent.



      Defe ndan t was c harge d with p osse ssion of a ha ndgu n in a public place and

violation of the habitu al mo tor veh icle offender act. In conjunction with a negotiated

plea agreement, Defendant pled guilty to both charges in exchange for a one (1)

year sentence on the habitual motor vehicle offender act conviction and a thirty (30)

day sentence for the possession of a handgun conviction, with the sentences to run

concurren tly. The agre ement also stipulated that the trial court was to determine if

the sentence should be suspended following a hearing.              However, Defendant

withdrew his petition for a suspended sentence and instead petitioned for probation

coupled with periodic confinement in the form of weekend sentencing. The trial court

denied the petition and entered judgment requiring Defendant to serve the sentence

in the Shelby County workhouse.



      At the hea ring, the S tate conte sted the g rant of De fendan t’s petition du e to

Defendant’ s prior criminal record.      From the presentence report, it is obvious

Defendant has committed a long string of criminal offenses, including man y traffic

offenses and c onvictio ns for a rmed robbe ry and first degree burglary. In addition,

the record reflects that Defendant has been offered many opportunities for

rehabilitation in his prior senten cing, includ ing prob ation. It was no ted by the State

that Defendant committed other offenses while he was on probation. Defendant has



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not had a stable history of employment and did not have a current job until urged by

his couns el to beco me em ployed. In detailed findings, the trial cou rt addr esse d all

the relevant facts and circumstances and the appropriate sentencing principles.

Tenn. Code Ann. § 40-35-210. It concluded that in light of Defendant’s criminal

history and inability to abide by the laws of this State, Defendant is not a proper

candid ate for we ekend senten cing.



      The trial cou rt’s judg men t denyin g Def enda nt’s pe tition for p eriodic

confinement has not been overcome by proof from the Defe ndant. State v. Ashby,

823 S.W .2d 166, 169 (Tenn. 199 1). When an accused challenges the length, range

or the m anner o f service of a sentence, this co urt has a duty to conduct a de novo

review of the sentence 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 show ing in the record tha t the trial court considered

the sentencing principles and a ll relevant facts and circum stances.” Ashby, 823

S.W.2d at 169. The re is no error of law ap parent on the record, and o ur review

reflects that the trial court followed the statutory sentencing procedure, imposed a

lawful sentence after having given due consideration and pro per weight to the fa ctors

and principles set out under the sentencing law, and made findings of fact

adequately supported by the record. Therefore, we may not modify the sentence.

State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).



      A sentence of total confinement is appropriate because of Defendant’s long

history of crim inal co nduc t and th e fact th at less restrictive measures have been

unsu cces sfully applied. Tenn. Code Ann. § 40-35-103(1). Based upon a thorough




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review of the record, the briefs of the parties, and the law governing the issues

presented for review, the judgment of the trial court is affirmed.



                                 ____________________________________
                                 THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID H. WELLES , Judge



___________________________________
NORMA McG EE OGLE, Judge




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