         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                        DECEMBER 1997 SESSION
                                                      FILED
                                                       March 18, 1998

                                                      Cecil Crowson, Jr.
STATE OF TENNESSEE,                 )                 Appellate C ourt Clerk
                                    )    NO. 02C01-9701-CR-00036
      Appellee,                     )
                                    )    SHELBY COUNTY
VS.                                 )
                                    )    HON. ARTHUR T. BENNETT,
HELEN K. DAVIS,                     )    JUDGE
                                    )
      Appellant.                    )    (Probation Denial)



FOR THE APPELLANT:                       FOR THE APPELLEE:

A. C. WHARTON, JR.                       JOHN KNOX WALKUP
Shelby County Public Defender            Attorney General and Reporter

TONY BRAYTON (on appeal)                 KENNETH W. RUCKER
Assistant Public Defender                Assistant Attorney General
201 Poplar Avenue, Suite 201             Cordell Hull Building, 2nd Floor
Memphis, TN 38103                        425 Fifth Avenue North
                                         Nashville, TN 37243-0493
TERESA JONES (at trial)
Assistant Public Defender                WILLIAM L. GIBBONS
201 Poplar Avenue, Suite 201             District Attorney General
Memphis, TN 38103
                                         LEE COFFEE
                                         Assistant District Attorney General
                                         201 Poplar Avenue, Suite 301
                                         Memphis, TN 38103




OPINION FILED:



AFFIRMED



JERRY L. SMITH,
JUDGE
                                      OPINION



       The defendant, Helen K. Davis, appeals as of right from convictions of

three (3) counts of simple robbery, Class C felonies. She pled guilty and agreed

to concurrent terms of eight (8) years as a Range II offender. The sole issue

presented for review is whether the trial court erred in denying the defendant

probation. We affirm the judgment of the trial court.



                                          I.



       The defendant alleges the trial court improperly denied probation in her

case. She alleges the trial court’s denial of probation was based on a

predetermined policy of denying probation to all persons indicted for aggravated

robbery, but who later plead guilty to the lesser offense of simple robbery.

       The defendant agreed to an effective sentence of eight (8) years. Since

the offense of robbery is not specifically excluded, the defendant is eligible for

probation consideration. Tenn. Code Ann. § 40-35-303 (a).



                                          II.



       When reviewing sentencing issues, including probation, this Court

conducts a de novo review with a presumption of correctness. Tenn. Code Ann.

§ 40-35-401 (d). Probation is a privilege which may be granted to a defendant

who is eligible and worthy. Stiller v. State, 516 S.W.2d 616, 620 (Tenn. 1974).

Factors to consider include the defendant’s criminal record, social history,

present physical and mental condition, the circumstances of the offense, the

deterrent effect upon the criminal activity of the defendant as well as others, and

the defendant’s potential for rehabilitation. Id.

       Under the 1989 Sentencing Act, sentences which involve confinement are

to be based on the following considerations contained in Tenn. Code Ann. § 40-


                                          2
35-103(1):

       (A) [c]onfinement is necessary to protect society by restraining a
       defendant who has a long history of criminal conduct;

       (B) [c]onfinement is necessary to avoid depreciating the
       seriousness of the offense or confinement is particularly suited to
       provide an effective deterrence to others likely to commit similar
       offenses; or

       (C) [m]easures less restrictive than confinement have frequently or
       recently been applied unsuccessfully to the defendant.

See State v. Millsaps, 920 S.W.2d 267, 270 (Tenn. Crim. App. 1995).



                                         III.



       The facts reveal that the defendant used cocaine for approximately

seventeen (17) years before her arrest. She actually committed three (3)

robberies with a deadly weapon, but was allowed to plead guilty to simple

robbery. Subsequent to her arrest, the defendant underwent treatment for her

drug problem and had several witnesses testify that she has made great

progress toward rehabilitation.

       The trial court, however, noted that while the defendant was being

sentenced for three (3) simple robberies, she in fact committed three (3)

aggravated robberies. The actual crimes were crimes of violence to the person.

It is proper for a trial court to “look behind” the plea and consider the offenses

actually committed. State v. Hollingsworth, 647 S.W.2d 937, 939 (Tenn. 1983);

State v. Biggs, 769 S.W.2d 506, 507 (Tenn. Crim. App. 1988). We also note

that, had she been convicted for the offenses actually committed, she would not

be eligible for probation. One committing aggravated robbery is not eligible for

probation. Tenn. Code Ann. § 40-35-303 (a).

       The trial court placed great emphasis on not depreciating the seriousness

of the offenses committed by the defendant. We agree. In addition, the

defendant’s illicit use of cocaine for seventeen (17) years evidences an extensive

period of criminal activity even though not resulting in convictions. Further, the

record does not reveal that the trial court denied probation as a matter of “policy.”

                                          3
We find no reason to disturb the ruling of the trial court.



       The judgment of the trial court is AFFIRMED.




                                                  _________________________
                                                  JERRY L. SMITH, JUDGE




CONCUR:




______________________________
JOE B. JONES, PRESIDING JUDGE




______________________________
CURWOOD WITT, JUDGE




                                          4
