           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON

                         AUGUST SESSION, 1996


STATE OF TENNESSEE,          )      C.C.A. NO. 02C01-9509-CC-00267
                             )
      Appellee,              )
                             )
                             )      OBION COUNTY
VS.                          )
                             )      HON. W. MICHAEL MALOAN
KEETA BURDEN,

      Appellant.
                             )
                             )
                             )
                                    JUDGE

                                    (Re-Sentencing)
                                                            FILED
                                                                March 26, 2008

                                                            Cecil Crowson, Jr.
                                                                Appellate Court Clerk

FOR THE APPELLANT:                  FOR THE APPELLEE:

JAMES H. BRADBERRY                  CHARLES W. BURSON
Branberry, Crowe & MacLeod          Attorney General and Reporter
P. O. Box 765
Dresden, TN 38225                   CYRIL V. FRASER
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243

                                    THOMAS A. THOMAS
                                    District Attorney General

                                    JAMES T. CANNON
                                    Assistant District Attorney
                                    414 South Fourth Street
                                    Union City, TN 38261-0218



OPINION FILED ________________________

AFFIRMED PURSUANT TO RULE 20

JERRY L. SMITH, JUDGE
                                    ORDER

      This is an appeal as of right from the judgment of the Circuit Court of Obion

County, granting Appellant’s motion to modify her sentence, but denying her full

probation. See, Tenn. R. Crim. P. 35. Appellant was convicted upon a plea of

guilty of the offense of theft of property in excess of $60,000, a Class B felony.

Her original sentence, imposed April 17, 1995, was to a term of eight years in the

Department of Correction as a Range I standard offender. The sentence was

suspended except for one year which Appellant was ordered to serve in the

Obion County Jail. A probationary period was imposed for the balance of the

term and restitution ordered as a condition thereof.



      On August 7, 1995, Appellant filed a Motion For Correction or Reduction

of Sentence. The sentence was modified to require that Appellant serve only

sixty days in the county jail. The trial judge declined to place Appellant on full

probation.   It is from the denial of outright probation for the full eight year

sentence that Appellant seeks relief in this Court. After a careful review of the

record and briefs in this matter we are of the opinion that the judgment of the trial

court should be affirmed pursuant to Rule 20, Rules of the Court of Criminal

Appeals.



      W e note initially that this is an appeal from a decision with regard to a

motion to modify or reduce a previously imposed sentence. Tenn. R. Crim. P. 35.

In contrast to the de novo standard of review applicable to sentencing appeals

perfected under Tenn. Code Ann. Sec. 40-35-401(d), appeals of Rule 35

decisions are reviewed simply to determine if there has been an abuse of


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discretion on the part of the trial judge. State v. Irick, 861 S.W .2d 375 (Tenn.

Crim. App. 1993). W e also note that, as a Class B felon, Appellant does not

enjoy the presumption that she is entitled to a non-incarcerative sentence. See,

Tenn. Code Ann. Sec. 40-35-102(6).



      There is evidence in this record which would have justified placing

Appellant on full probation. However, the record also reflects that despite her

claims that the theft from her employer was motivated by the desire to provide

bare necessities fro her family, Appellant stole approximately $139,000 over a

three year period. Some of this money was used to pay for a van, collectibles

such as “Dickens Villages”, and gymnastics classes for Appellant’s children.

Appellant’s employers suffered rather severe business difficulties as a result of

Appellant’s actions including mounting debt, impaired credit, and impending

layoffs of other employees.



      Given the circumstances it is not difficult to see how full probation could

depreciate the seriousness of the offense. Even were this Court inclined to grant

full probation, the record is sufficient to sustain the trial court’s exercise of

discretion in declining same. Under these circumstances, we will not disturb the

decision of the trial judge and we therefore affirm pursuant to Rule 20, Rules of

the Court of Criminal Appeals.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE




CONCUR:

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___________________________________
GARY R. W ADE, JUDGE


___________________________________
W ILLIAM M. BARKER, JUDGE




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