              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                          AT JACKSON

                                SEPTEMBER SESSION, 1999                   FILED
                                                                         December 30, 1999

STATE OF TENNESSEE,                              *                  Cecil Crowson, Jr.
                                                                   Appellate Court Clerk
                                                 * C.C.A. No.W1998-00553-CCA-R3-CD
        Appellee,                                *
                                                 *     SHELBY COUNTY
vs.                                              *
                                                 *     Hon. Carolyn Wade Blackett,
                                                 *     Judge
DEBRA L. TROTTER,                                *
                                                 *     (Theft of Property)
        Appellant.                               *



                                    DISSENTING OPINION

        I disagree with the majority's rejection of an alternative sentence in this case.
The appellant is a thirty-nine year old single mother of a ten year old son. After

obtaining a GED, she attended college. She has always maintained gainful

employment and has no criminal history. She stole $149,756.99 from her employer

over a period of three years. She has agreed to make partial restitution.1 Contrary

to the trial court's findings, the appellant repeatedly expressed remorse and
embarrassment over her conduct. She acknowledged that the stolen money was

used for her son, herself and her sister who had health problems.



        This court denies the appellant an alternative sentence based upon

"circumstances of the offense," "lack of candor" and "failure to accept responsibility."

This ruling, however, totally ignores the statutory requirement that " . . . sentences
involving confinement should be based . . ." upon the sentencing considerations of

Tenn. Code Ann. § 40-35-103(A), (B), and (C). See State v. Ashby, 823 S.W.2d

166, 169 (Tenn. 1991) (construing sentencing principles), State v. Jones, 883

S.W.2d 597, 600 (Tenn. 1994) (in selecting sentence to be imposed 103 principles
must be considered). None of the majority’s above-mentioned reasons for imposing

total confinement are found in Section 103(A), (B), or (C). As Judge Woodall has

previously acknowledged:

        When imposing a sentence of total confinement, our Criminal

   1
     The State did not oppose probation at the sentencing hearing. The proof also established that
Traveler's Insurance Company has paid a portion of the loss.
       Sentencing Reform Act mandates the trial court to base its decision on
       the considerations set forth in Tennessee Code Annotated section 40-
       35-103. These considerations which militate against alternative
       sentencing include: the need to protect society by restraining a
       defendant having a long history of criminal conduct; whether
       confinement is particularly appropriate to effectively deter others likely
       to commit a similar offense; the need to avoid depreciating the
       seriousness of the offense; and the need to order confinement in
       cases in which less restrictive measures have often or recently been
       unsuccessfully applied to the defendant. Tenn. Code Ann. § 40-35-
       103(1).
State v. Frankie Lee Lunsford, No. 03C01-9804-CR-00152 (Tenn. Crim. App. at

Knoxville, May 21, 1999) (emphasis added); see also State v. Mark A. Hill, No.

01C01-9801-CC-00042 (Tenn. Crim. App. at Nashville, Dec. 21, 1998) (Riley, J.)
(Sentence of confinement must be based on section 103 considerations). Again,

none of these factors apply to this case.



       In the present case, there is no showing that a sentence of confinement is

necessary; thus, the denial of an alternative sentence is error. See, e.g., Stiller v.

State, 516 S.W.2d 617 (Tenn. 1974) (probation granted where defendant forged

bank notes in sum of $26,000, made false banking entries and embezzled

$65,740.00); State v. Grissom, 959 S.W.2d 514, 520 (Tenn. Crim. App. 1997)

(alternative sentence granted for embezzlement of $29,000.00 where State failed to

establish confinement consideration of section 103), State v. Millsaps, 920 S.W.2d

267, 271-272 (alternative sentence granted for embezzlement of $80,220.00 where
State failed to establish confinement consideration of section 103); State v. Lynda

Gayle Kirkland, No. 03C01-9606-CR-00248 (Tenn. Crim. App. at Knoxville, Feb. 12,

1997) (alternative sentence granted for embezzlement of $202,096.75). I echo the
comments of this court's former presiding judge, Honorable Joe B. Jones, who in a

somewhat analogous breach of trust case observed:

       Nothing will be gained by 'warehousing' this particular defendant in the
       Department of Corrections. . . . Furthermore, there is no evidence of
       substance contained in the record that a lengthy incarceration is in the
       public's or the defendant's best interest. . . . It is common knowledge
       the penal institutions of this State are filled to capacity with inmates
       who have committed more serious offenses than the defendant. . .
       [T]here are literally hundreds, perhaps thousands, of convicted felons
       confined in local jails awaiting transportation to a Department of
       Corrections facility when space permits. . . . When, as here, the
       defendant has an excellent chance for rehabilitation, requiring the
       defendant to serve her sentence in a penitentiary operated by the
       Department of Corrections will further complicate an already complex
       situation while serving no useful purpose.


State v. Smith, 735 S.W.2d 859, 865 (Tenn. Crim. App. 1987).


                                            2
      Clearly, this case sends mixed signals to the trial judges and creates disparity
in sentencing. For these reasons, I would remand for imposition of an alternative

sentence.




                                 ____________________________________
                                 DAVID G. HAYES, Judge




                                         3
