         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON              FILED
                           MAY 1999 SESSION
                                                           June 3, 1999

                                                       Cecil Crowson, Jr.
                                                      Appellate Court Clerk
STATE OF TENNESSEE,                   )
                                      )    NO. 02C01-9806-CR-00197
      Appellee,                       )
                                      )    SHELBY COUNTY
VS.                                   )
                                      )    HON. CHRIS CRAFT,
TONY O. WILLIAMS,                     )    JUDGE
                                      )
      Appellant.                      )    (Sentencing)



FOR THE APPELLANT:                         FOR THE APPELLEE:

MARVIN E. BALLIN                           PAUL G. SUMMERS
MARK A. MESLER                             Attorney General and Reporter
200 Jefferson Avenue, Ste. 1250
Memphis, TN 38103-2328                     PATRICIA C. KUSSMANN
                                           Assistant Attorney General
                                           Cordell Hull Building, 2nd Floor
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           WILLIAM L. GIBBONS
                                           District Attorney General

                                           JENNIFER S. NICHOLS
                                           AMY P. WEIRICH
                                           Assistant District Attorneys
                                                  General
                                           201 Poplar Avenue, Ste. 301
                                           Memphis, TN 38103-1947




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                   OPINION


      Defendant appeals as of right the trial court’s denial of alternative sentencing.

Defendant entered a plea of guilty to violation of the Motor Vehicle Habitual

Offenders Act, agreed to a sentence of 14 months and submitted the issue of

alternative sentencing to the trial court. Based upon our review of the record, we

AFFIRM the judgment of the trial court denying alternative sentencing.



                                          I



       Defendant was stopped on May 28, 1997, by a Memphis police officer who

observed him traveling 70 miles per hour in a 40 mile per hour zone. The officer

determined defendant had previously been adjudicated a motor vehicle habitual

offender. Defendant apologized for speeding and said nothing about having an

emergency.

       At the sentencing hearing defendant contended he drove because of a

medical emergency. He contended he was at his sister’s home when his wife, then

four months pregnant, called him complaining of stomach pains.

       Defendant has an extensive criminal record consisting primarily of driving

offenses. He had six separate convictions for driving on a revoked license, one

conviction for leaving the scene of an accident involving personal injury, and one

conviction for malicious mischief. In March 1996, defendant was convicted of his

first violation of the Motor Vehicle Habitual Offenders Act and was sentenced to 90

days in confinement on weekends and probation for a period of one year. The

present offense, his second violation of the Motor Vehicle Habitual Offenders Act,

was committed shortly after the expiration of his probation on the prior violation.

       The trial court denied alternative sentencing. Defendant now contends the

trial court erred in failing to place the defendant in the community corrections

program.




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                                         II



              This Court’s review of the sentence imposed by the trial court is de

novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This

presumption is conditioned upon an affirmative showing in the record that the trial

judge considered the sentencing principles and all relevant facts and circumstances.

State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

       The Community Corrections Act establishes a program of community-based

alternatives to incarceration for certain eligible offenders. See Tenn. Code Ann. §

40-36-103.    The Act does not provide that all offenders who meet these

requirements are entitled to such relief. State v. Grandberry, 803 S.W.2d 706, 707

(Tenn. Crim. App. 1990).

       Under the Criminal Sentencing Reform Act of 1989, trial judges are

encouraged to use alternatives to incarceration. An especially mitigated or standard

offender convicted of a Class C, D or E felony is presumed to be a favorable

candidate for alternative sentencing options in the absence of evidence to the

contrary. Tenn. Code Ann. § 40-35-102(6).

       In determining if incarceration is appropriate, a trial court may consider the

need to protect society by restraining a defendant having a long history of criminal

conduct, the need to avoid depreciating the seriousness of the offense, whether

confinement is particularly appropriate to effectively deter others likely to commit

similar offenses, and whether less restrictive measures have often or recently been

unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-103(1); see also

State v. Ashby, 823 S.W.2d at 169; State v. Grigsby, 957 S.W.2d 541, 545 (Tenn.

Crim. App. 1997).



                                         III



       The trial court questioned whether defendant’s driving on this occasion was

a true emergency since the defendant did not so advise the police officer. The trial


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court related that the defendant had a lengthy history of criminal conduct, and that

past efforts involving alternative sentencing had failed to rehabilitate the defendant.

See Tenn. Code Ann. §§ 40-35-102(5); 40-35-103(1)(A),(C).             The trial court

specifically noted that defendant’s prior violation of the Motor Vehicle Habitual

Offenders Act resulted in an alternative sentence which did not deter the defendant

from driving. The trial court concluded, “I just don’t think anything will stop him.”

Unfortunately, it appears the trial court is correct.



                                          IV



       The trial court’s findings are clearly supported by the record. The defendant

has continued to display a total disregard for the law. He has been fined, given

short jail sentences and granted alternative sentencing. Yet, defendant continues

to violate the law. The trial court did not err in denying community corrections for

this the defendant’s second violation of the Motor Vehicle Habitual Offenders Act.




       The judgment of the trial court is AFFIRMED.




                                                   ____________________________
                                                   JOE G. RILEY, JUDGE




CONCUR:


____________________________
JOHN H. PEAY, JUDGE



____________________________
THOMAS T. WOODALL, JUDGE


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