             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE               FILED
                           DECEMBER 1997 SESSION
                                                                January 28, 1998

STATE OF TENNESSEE,             )                           Cecil W. Crowson
                                )                         Appellate Court Clerk
                                       No. 01-C-01-9704-CR-00131
      APPELLEE,                 )
                                )      Davidson County
v.                              )
                                )      Thomas H. Shriver, Judge
TINA MARIE OVERSTREET,          )
                                )      (Sentencing)
      APPELLANT.                )



FOR THE APPELLANT:                     FOR THE APPELLEE:

Jay Norman                             John Knox Walkup
Attorney at Law                        Attorney General & Reporter
213 Third Avenue, North                500 Charlotte Avenue
Nashville, TN 37201                    Nashville, TN 37243-0497

                                       Georgia B. Felner
                                       Counsel for the State
                                       Cordell Hull Building, Second Floor
                                       425 Fifth Avenue, North
                                       Nashville, TN 37243-0493

                                       Victor S. Johnson
                                       District Attorney General
                                       Washington Square, Suite 500
                                       222 Second Avenue, North
                                       Nashville, TN 37201

                                       John Zimmermann
                                       Assistant District Attorney General
                                       Washington Square, Suite 500
                                       222 Second Avenue, North
                                       Nashville, TN 37201

                                       Pam Anderson
                                       Assistant District Attorney General
                                       Washington Square, Suite 500
                                       222 Second Avenue, North
                                       Nashville, TN 37201



OPINION FILED: ______________________________


AFFIRMED


Joe B. Jones, Presiding Judge

                                    OPINION
       The appellant, Tina Marie Overstreet (defendant), was convicted of two counts of

delivery of marijuana, Class E felonies, following her pleas of guilty to these offenses. The

trial court, finding the defendant was a standard offender, imposed a Range I sentence

consisting of a $2,000 fine and confinement for one (1) year in the Davidson County

Workhouse for each count pursuant to a plea agreement. It was further agreed the

sentences were to be served concurrently. The trial court ordered the defendant to serve

from November 22, 1996 to December 23, 1996 in the Metro County Jail. The balance of

the sentence is to be served on probation. In this court, the defendant contends the

“sentence of confinement imposed is excessive.” After a thorough review of the record,

the briefs submitted by the parties, and the law governing the issue presented for review,

it is the opinion of this court that the judgment of the trial court should be affirmed.

       The defendant was twenty-nine years of age when she was sentenced. She is

married and three children were born to this union. The defendant and her husband were

separated when these offenses occurred.

       According to the presentence report, the defendant has a tenth grade education.

Her work history is sporadic. She has been found guilty of three misdemeanors. The

presentence report indicates the defendant has been smoking marijuana since she was

sixteen years of age.

       The defendant sold a pound of marijuana to an undercover police officer on two

separate occasions.     Apparently a friend of the defendant, acting as a confidential

informant, arranged the sales.

       The trial court did not discuss his reasons for requiring the defendant to serve

approximately thirty days in jail as required by the Tennessee Sentencing Reform Act of

1989. Therefore, this court will conduct a review of the record without a presumption of

correctness.

       The record establishes the defendant has a previous history of prior convictions as

well as criminal behavior. Tenn. Code Ann. § 40-35-114(1)(1997 Repl.). This factor must

be considered, along with the fact the defendant was able to obtain the two pounds of

marijuana with relative ease. When asked by the undercover officer when she would like

to sell the two additional pounds of marijuana, she indicated her contact would be going


                                              2
to Texas in the near future to purchase sixty-five pounds of marijuana. This indicated the

defendant was closely associated with her supplier.

       The trial court did not abuse its discretion by requiring the defendant to serve

approximately thirty days of her sentence. Confinement is required to avoid depreciating

the seriousness of the offense.       Tenn. Code Ann. § 40-35-103(1)(B)(1997 Repl.).

Confinement is also necessary to deter the defendant as well as others from engaging in

the sale of illicit narcotics, especially large quantities of illicit narcotics. Tenn. Code Ann.

§ 40-35-103(1)(B)(1997 Repl.). Finally, the defendant was granted probation in 1993.

These offenses occurred in 1996. The defendant continued to smoke marijuana. In short,

probation was not a motivation for the defendant to change her lifestyle of engaging in

criminal conduct. Tenn. Code Ann. § 40-35-103(1)(C)(1997 Repl.). This court is hopeful

the defendant will be able to rehabilitate herself and learn to be a productive citizen and

a good and loving mother to her children.




                                            ________________________________________
                                                JOE B. JONES, PRESIDING JUDGE


CONCUR:



_____________________________________
     PAUL G. SUMMERS, JUDGE



_____________________________________
     WILLIAM M. BARKER, JUDGE




                                               3
