         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON                 FILED
                         JULY 1998 SESSION           September 11, 1998

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
STATE OF TENNESSEE,         )
                            )    C.C.A. No. 02C01-9707-CR-00253
            Appellee,       )
                            )    SHELBY COUNTY
vs.                         )
                            )    HON. CHRIS CRAFT
ERIC D. WOODARD,            )
                            )    (Possession of Marijuana to
                            )     Sell or Deliver)
            Appellant,      )
                            )    AFFIRMED - RULE 20




FOR THE APPELLANT:               FOR THE APPELLEE:

RANDALL P. SALKY                 JOHN KNOX WALKUP
266 South Front Street           Attorney General & Reporter
Memphis, TN 38103
                                 PETER M. COUGHLAN
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 2d Floor, Cordell Hull Building
                                 Nashville, TN 37243-0493

                                 JERRY KITCHEN
                                 Assistant Dist. Attorney General
                                 201 Poplar Avenue, Third Floor
                                 Memphis, TN 38103




OPINION FILED: _____________

AFFIRMED


CURWOOD WITT, JUDGE
                                      OPINION

              The defendant, Eric D. Woodard, appeals the decision of the Shelby

County Criminal Court to deny probation of his plea-bargained one-year sentence.

The trial court imposed the sentence, along with a $2,000 fine, in consequence of

the defendant’s guilty plea to the Class E felony of possessing marijuana with intent

to sell or deliver. We have reviewed the record on appeal, including the briefs of the

parties, the transcript of the sentencing hearing, and the presentence report, and

we affirm the denial of probation pursuant to Rule 20 of the rules of this court.



              The trial court considered the applicable principles of the Sentencing

Reform Act and articulated its findings of fact. Its decision is presumptively correct.

Tenn. Code Ann. § 40-35-401(d) (1997); State v. Ashby, 823 S.W.2d 166 (Tenn.

1991).



              At the time of sentencing, the twenty-three year-old defendant had a

previous “non-judicially adjusted” juvenile charge of marijuana possession, an

offense he admitted. Also, as an adult, he had been convicted of assault and his

probation for this offense ended only a few weeks before the drug sale that resulted

in the present conviction. The defendant admitted the use of marijuana subsequent

to the adjustment of his juvenile charge and throughout the probation on the assault

charge. He admitted that, during the time when the present offense (selling 115.4

grams for $325) was committed, he was extensively involved in selling marijuana

and was a “dope dealer.” The trial court denied alternative sentencing chiefly

because alternative sentencing had been unsuccessful in the past. The trial court

properly found that the evidence overcame the presumption of favorable candidacy

for alternative sentencing. See Tenn. Code Ann. § 40-35-102(6) (1997); Tenn.

Code Ann. § 40-35-103(1)(C)(1997) (providing that a sentence involving

confinement may be based on the fact that “measures less restrictive than

confinement have . . . recently been applied unsuccessfully to the defendant”).

Moreover, the burden rests upon the defendant to demonstrate entitlement to

probation. State v. Bingham, 910 S.W.2d 448, 455 (Tenn. Crim. App. 1995);


                                          2
see Tenn. Code Ann. § 40-35-303(b) (1997).



              The trial court’s denial of probation comes to this court presumed to

be correct.   The record reflects nothing that overcomes this presumption.

See Ashby, 823 S.W.2d at 169.



              The judgment of the trial court is AFFIRMED pursuant to Rule 20.

Tenn. R. Ct. Crim. App. 20.



                                                _________________________
                                                CURWOOD W ITT, Judge

CONCUR:


________________________
JOE G. RILEY, Judge



_________________________
ROBERT W. WEDEMEYER, Special Judge




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