             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT JACKSON             FILED
                              APRIL 1998 SESSION
                                                       September 17, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE                  )
                                    )          02C01-9709-CR-00343
      Appellee                      )
                                    )          SHELBY COUNTY
v.                                  )
                                    )          Hon. W. Fred Axley
JEREMY A. WINSETT                   )
                                    )          (Vehicular Homicide)
      Appellant.                    )
                                    )




For the Appellant:                             For the Appellee:

Charles D. Wright                              John Knox Walkup
150 Court Avenue, 2nd Floor                    Attorney General & Reporter
Memphis, TN. 38103
                                               Marvin E. Clements, Jr.
                                               Assistant Attorney General
                                               Cordell Hull Building, 2nd Floor
                                               425 Fifth Avenue North
                                               Nashville, TN. 37243-0493

                                               William L. Gibbons
                                               District Attorney General

                                               Johnny R. McFarland
                                               Assistant District Attorney
                                               201 Poplar Ave., Ste. 301
                                               Memphis, TN. 38103-1947




OPINION FILED:______________________

AFFIRMED

WILLIAM M. BARKER, SPECIAL JUDGE
                                          OPINION

       The appellant, Jeremy A. Winsett, appeals as of right the three (3) year

sentence of confinement he received following the entry of guilty pleas to two counts

of vehicular homicide in the Criminal Court of Shelby County. We affirm the judgment

of the trial court.

       This protracted case originated in 1992, following a tragic automobile accident

which took the lives of Wymond Love, Sr., and Nicolette Amoroso. According to

eyewitness testimony, the appellant was driving at an excessive rate of speed on

James Road in Shelby County when his car suddenly made a “U-turn” and slammed

into an oncoming truck driven by Mr. Love. The streets were wet from rainy weather

on the day of the accident. The violent collision caused Mr. Love to be thrown from

his truck and he died almost instantly. One of appellant’s passengers, Ms. Amoroso,

also died as a result of the collision.

       The Shelby County Grand Jury indicted the appellant on two counts of

vehicular homicide. Appellant initially pled not guilty and sought pre-trial diversion. He

submitted a written application for pre-trial diversion on February 24, 1993. The

District Attorney General denied the application and that denial was affirmed by the

trial court. Thereafter, the appellant filed a Rule 10 appeal to this Court.

       This Court reversed and remanded the case to the trial court with instructions

on how to properly address pre-trial diversion under Tennessee Code Annotated

section 40-15-105 (1990). State v. Winsett, 882 S.W.2d 806 (Tenn. Crim. App. 1993),

perm. app. denied (June 13, 1994). Upon remand, the appellant resubmitted his

application for pre-trial diversion, which was again denied by the District Attorney. The

trial court affirmed the denial following an evidentiary hearing and granted permission

for the appellant to seek a Rule 9 interlocutory appeal to this Court.

       Permission to file the interlocutory appeal was granted by this Court on October

13, 1994. In that appeal, a panel of this Court determined that the District Attorney



                                             2
had abused his discretion in denying pre-trial diversion without considering the

appropriate factors and without articulating in a written report the reasons for the

denial. State v. Jeremy Winsett, No. 02C01-9409-CR-00223 (Tenn. Crim. App. at

Jackson, Feb. 29, 1996), perm. app. denied (Tenn. Mar. 3, 1997). According to the

Court, the evidence reflected that the appellant was amenable to correction and was

not likely to commit subsequent crimes. Slip op. at 2. The Court, therefore, reversed

and remanded the case to the trial court with instructions to grant pre-trial diversion.

Id.

        The appellant was arrested for the theft of property under $500 while his

interlocutory appeal was pending before this Court.1 He pled guilty to the theft charge

and served two days in jail. Consequently, when his vehicular homicide case was

remanded to the trial court, the trial court determined that appellant was no longer

entitled to pre-trial diversion. The appellant, therefore, changed his pleas to guilty and

agreed to a three (3) year sentence, with the manner of service to be determined by

the trial court.

        The trial court conducted a sentencing hearing at which the appellant requested

judicial diversion or in the alternative, probation. Based upon appellant’s criminal

history and the nature of the vehicular homicide offenses, the trial court denied his

request and ordered him to serve the entire three (3) year sentence in confinement.

The appellant contends on appeal that the sentence of confinement is contrary to the

evidence and that he is entitled to judicial diversion or a probationary sentence.2 We

disagree.

        1
         The appellant was arrested for shoplifting $36 worth of property from a W alMart in Shelby
Coun ty. At the sente ncing he aring in this c ase, he testified that h e did not ac tually steal the pr operty
from the store, but waited instead in a parked car while a young girl, Jean Gates, went into the store and
exited with a bag of goods. Appellant testified that Gates asked him to take the goods back inside the
store and obtain a cash refund. He entered the store with the goods, but decided not to refund them
because the return lines were too long. As he attempted to leave the store, a security guard approached
him and asked about the goods. The goods were determined to be stolen and the appellant was
arrested for shop lifting. Gates fled the sc ene wh en sec urity guards attem pted to qu estion he r.

        2
          The appellant mentions in his brief that the trial judge should have recused himself from the
senten cing proc eeding in th is case. H oweve r, he cites n o author ity or reason to suppo rt this propo sition.
W e conc lude that it is witho ut me rit.

                                                        3
      The record reflects that the appellant has been arrested three times since the

automobile accident in 1992. Of those three arrests, he was convicted of theft under

$500, a Class A misdemeanor, for which he served two days incarceration.

      We have conducted a de novo review of the record and conclude that the theft

conviction renders the appellant ineligible for judicial diversion. Tenn. Code Ann. §

40-35-313(a)(1) (Supp. 1992). Moreover, he has failed to carry his burden of

demonstrating suitability for any form of probation. Although he was a presumable

candidate for a probationary sentence 3, the trial court concluded that the presumption

was rebutted by appellant’s criminal record, the circumstances of the offense, and the

need to deter the appellant and others from similar reckless offenses. Stiller v. State,

516 S.W.2d 617, 620 (Tenn. 1974); State v. Bonestel, 871 S.W.2d 163, 169 (Tenn.

Crim. App. 1993).

      We agree with the trial court’s finding that the sentence of confinement is

necessary to avoid depreciating the serious nature of the vehicular homicide offenses

and to deter the appellant from further criminal conduct. Tenn. Code Ann. § 40-35-

103 (Supp. 1992). The judgment of the trial court is affirmed.



                                                _______________________________
                                                WILLIAM M. BARKER, Special Judge


CONCUR:


____________________________
DAVID G. HAYES, JUDGE


____________________________
JOE G. RILEY, JUDGE




      3
          Tenn. Code A nn. §§ 40-35-102(6) & 40-3 5-303(a) (Supp. 1992).

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