     IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                     AT KNOXVILLE                                    FILED
                                                                    December 2, 1999
                            NOVEMBER 1999 SESSION
                                                                  Cecil CROWS ON, Jr.
                                                                  Appellate Court Clerk


STATE OF TENNESSEE,             )
                                )
             Appellee,          )    No. 03C01-9901-CC-00025
                                )
                                )     Blount County
v.                              )
                                )    Honorable D. Kelly Thomas, Jr., Judge
                                )
TINA EARLS,                     )    (Theft of property valued under five-hundred
                                )    dollars)
             Appellant.         )



For the Appellant:                   For the Appellee:
Shawn Graham                         Paul G. Summers
Office of the Public Defender        Attorney General of Tennessee
419 High Street                             and
Maryville, Tennessee 37804           Clinton J. Morgan
(AT TRIAL)                           Assistant Attorney General of Tennessee
                                     425 Fifth Avenue North
                                     Nashville, TN 37243
Gerald L. Gulley, Jr.
Post Office Box 1708                 Michael L. Flynn
Knoxville, TN 37901-1708             District Attorney General
(ON APPEAL)                                  and
                                     Kirk E. Andrews
                                     Assistant District Attorney General
                                     363 Court Street
                                     Maryville, TN 37804




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge



                                    OPINION
                The defendant, Tina Earls, 1 appeals as of right from her conviction
following a guilty plea in the Blount County Criminal Court for theft of property valued

under five-hundred dollars, a Class A misdemeanor. The trial court sentenced the
defendant to eleven months and twenty-nine days in the Blount County Jail, with

probation eligibility after serving fifty percent of the sentence. The defendant contends

that the trial court should have been sentenced her to full probation or to community
corrections. We affirm the judgment of the trial court.



                At the sentencing hearing, the twenty-nine-year-old defendant testified
that she had been addicted to cocaine for nine years and that she routinely shoplifted

merchandise to sell for cocaine money. She testified that she did not work but received

disability benefits because of her nerves. She stated that she has two children, ages
eight and ten, and that she did not use drugs in front of her children. She testified that

she attended various drug treatment programs but was unable to complete them

because of problems with her insurance and lack of transportation. She testified that

she wanted to complete a treatment program but admitted that the temptation of drugs

remained strong.



                A presentence report was admitted into evidence. The report reflects that

the defendant has five previous theft convictions dating from 1995, two petit larceny
convictions from 1989, and one shoplifting conviction from 1989. The defendant

reported using alcohol beginning at age fourteen but reported that she had stopped

drinking alcohol after attending treatment in September 1998.


                Appellate review of misdemeanor sentencing is de novo on the record

with a presumption that the trial court’s determinations are correct. Tenn. Code Ann. §
40-35-401(d), -402(d). As the Sentencing Commission Comments to Tenn. Code Ann.

§ 40-35-401(d) note, the burden is now on the appealing party to show that the

sentence is improper. We note that the law provides no presumptive minimum for

misdemeanor sentencing. See, e.g., State v. Creasy, 885 S.W.2d 829, 832 (Tenn.



1
 The record also refers to the defendant as “Tina Brown” and “Tina Earls Brown”. We
refer to the defendant as Tina Earls in this opinion because that is the name on the indictment, and
nothing indicates that the indictment was amended.

                                                     2
Crim. App. 1994). However, in misdemeanor sentencing, the trial court must consider

the purposes and principles of the Criminal Sentencing Reform Act of 1989. Tenn.

Code Ann. § 40-35-302(d).


              Upon a review of the record, we believe that the trial court complied with

the sentencing statutes. See State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998)

(stating that “while the better practice is to make findings on the record when fixing a

percentage of a defendant’s sentence to be served in incarceration, a trial court need

only consider the principles of sentencing and enhancement and mitigating factors in
order to comply with the legislative mandates of the misdemeanor sentencing statute”).

The defendant’s lengthy criminal history more than justifies the defendant’s sentence

and the manner in which it is served. See Tenn. Code Ann. § 40-35-103(1)(A).

Moreover, although the defendant claims a desire for rehabilitation, she has been

unable to attend any treatment programs successfully. The trial court told the

defendant that she should use her time in jail to formulate a plan for rehabilitation and

treatment upon release, stating that “I don’t want you back out roaming around on the

roads and falling back into that.” The trial court considered six months of confinement

appropriate for the defendant’s rehabilitation. See Tenn. Code Ann. § 40-35-104(5).

The defendant has failed to overcome the presumption of correctness attached to the

trial court’s sentence.


              In consideration of the foregoing and the record as a whole, we affirm the

judgment of conviction.


                                                 ________________________________
                                                 Joseph M. Tipton, Judge

CONCUR:


___________________________
Jerry L. Smith, Judge

___________________________
Thomas T. W oodall, Judge




                                             3
