              IN THE COURT OF CRIMINAL APPEALS

                         AT NASHVILLE              FILED
                      MARCH SESSION, 2000           March 17, 2000

                                                  Cecil Crowson, Jr.
                                                 Appellate Court Clerk
STATE OF TENNESSEE             )
                               )    C.C.A. NO. M1999-01249-CCA-R3-CD
      APPELLEE,                )
                               )    SEQUATCHIE COUNTY
VS.                            )
                               )    HONORABLE J. CURTIS SMITH
RICHARD MISFELDT,              )    CIRCUIT JUDGE
                               )
      APPELLANT.               )    (THEFT, CLASS C)
                                )   ($10,000.00 - $60,000.00)


FOR THE APPELLANT:                  FOR THE APPELLEE:

EDWARD L. BORING                    PAUL G. SUMMERS
P. O. Box 1025                      Attorney General & Reporter
Pikeville, TN 37367
                                    LUCIAN D. GEISE
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

                                    J. MICHAEL TAYLOR
                                    District Attorney General

                                    STEVEN H. STRAIN
                                    Assistant District Attorney
                                    3751 Main Street
                                    Jasper, TN 37347




OPINION FILED:__________________

AFFIRMED

WILLIAM B. ACREE, JR., SPECIAL JUDGE
                                 OPINION


     This is an appeal as of right by the defendant of the sentence
imposed upon him. The trial judge sentenced the defendant to the
Tennessee Department of Corrections. The defendant contends that he
should have received alternative sentencing.


     The defendant was indicted for theft over $60,000.00, a Class B
felony. The indictment alleges that the defendant stole thirteen different
items of personal property with an aggregate value of $188,499.75.
According to the evidence, these thefts took place during the time period of
February 18, 1994 to April 6, 1997.


     The defendant entered a plea of guilty to the lesser included offense
of theft of property over $10,000.00, a Class C felony. The State and the
defendant agreed to a sentence of six years and also agreed that the trial
court would determine whether the defendant would be required to serve
time in confinement.


     At the sentencing hearing, the only evidence presented was the pre-
sentence report. According to that report, the defendant is 55 years of
age, divorced, and the father of two children. He has a degree in industrial
engineering and was gainfully employed until 1996. During a substantial
period of this time, he operated his own business and earned between
$50,000.00 and $60,000.00 a year. The defendant has one prior felony
conviction and that was for receiving stolen property in the State of
Alabama. That crime was committed during the time interval involved in
this case. He received a three year sentence.


      The trial court found that defendant engaged in a protracted crime
spree. Because of these facts and circumstances and because of the
defendant’s prior criminal record, the court sentenced the defendant to six
years in the Tennessee Department of Corrections as a Range I Standard
Offender. He was given credit for 265 days previously served.
      On appeal, the defendant insists he should have received alternative
sentencing rather than incarceration. He asserts that under T.C.A. §40-35-
102 (6) he was presumed to be a favorable candidate for alternative
sentencing, and that the State failed to present evidence sufficient to rebut
this presumption. In a related issue, the defendant contends that the trial
court erred in excluding evidence of sentences in other cases imposed by
the judges of the 12th Judicial District.


      The position of the State is that the trial court correctly sentenced the
defendant to incarceration rather than an alternative sentence for two
reasons: (1) to avoid depreciating the seriousness of the offense; and (2)
to provide an effective deterrent to others likely to commit similar offenses.


      In reviewing a sentence, there is a de novo review with a
presumption of correctness provided that the trial court considered the
sentencing principles and all relevant facts and circumstances. State v.
Ashby, 823 S.W.2d 167, 169 (Tenn.1991). There is not a presumption of
correctness in this case because the trial court did not address the
presumption that the defendant was a favorable candidate for alternative
sentencing. In conducting a de novo review of a sentence, this court must
consider the evidence, if any, received at the trial and sentencing hearing,
the information contained in the pre-sentence report, the statutory
principles of sentencing, counsel’s argument as to sentencing alternatives,
the nature and characteristics of criminal conduct, mitigating and statutory
enhancement factors, any statement that the defendant made on his own
behalf and the potential for rehabilitation or treatment. Ashby, at 169.


      In determining whether alternative sentencing is appropriate, the
sentencing procedure begins with a determination as to whether the
presumption under T.C.A. 40-35-102 (6) applies. This statute provides:


            “A defendant who does not fall within the parameters of
      subdivision (5) and is 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.”

     Ashby, at 169.


     The defendant is a standard offender and was convicted of a Class C
felony. It is then necessary to determine whether he falls within the
parameters of T.C.A. §40-35-102 (5) which provides:


           “In recognition that state prison capacities and the funds
     to build and maintain them are limited, convicted felons
     committing the most severe offenses, possessing criminal
     histories evincing a clear disregard for the laws of morals of
     society, and evincing failure of past efforts of rehabilitation shall
     be given first priority regarding sentencing involving
     incarceration.”


     Although the defendant has a prior felony conviction, the record does
not show his history to be such as to include him within the language of
this statute. Therefore, there is a presumption that the defendant is a
favorable candidate for alternative sentencing. If the presumption applies,
it is then necessary to determine whether the State has overcome the
presumption. In determining whether there is evidence to overcome the
presumption, it is necessary to review T.C.A. §40-35-103 (1) which
provides:


           “(1) Sentences involving confinement should be based on
     the following considerations:

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

            (B) Confinement 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) Measures less restrictive than confinement have
      frequently or recently been applied unsuccessfully to the
      defendant.”

            Ashby, at 169.
      The State contends that the denial of alternative sentencing was
proper because of deterrence and because of the seriousness of the
offense.


      To deny alternative sentencing on the ground of deterrence, there
must be evidence in the record that the sentence imposed will have a
deterrent effect within the jurisdiction. State v. Bingham, 910 S.W.2d 448,
455 (Tenn.Cr.App.1995). Aside from background information concerning
the defendant, the only evidence in this record is evidence of the crime
itself. The record is void of any evidence that a sentence of confinement
will have a deterrent effect within the jurisdiction. Accordingly, it was error
to deny alternative sentencing based upon deterrence.


      The State also contends that confinement is necessary to avoid
depreciating the seriousness of the offense. To deny an alternative
sentence based on the seriousness of the offense, “the circumstances of
the offense as committed must be especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated
degree,” and the nature of the offense must outweigh all factors favoring a
sentence other than confinement. Bingham, at 454, State v. Hartley, 818
S.W.2d 370, 374-75 (Tenn.Cr.App.1991).


      Although the defendant was indicted on only one count of theft, the
record reflects that over a period of more than three years, he committed
13 separate criminal acts of theft and that the property he stole had a value
of almost $190,000.00. In addition, during this same time period, he was
convicted in the State of Alabama for theft and received a sentence of
three years. It is proper to consider the number of criminal acts in
determining the seriousness of the offense. As stated in State v. Zeolia,
928 S.W.2d 457, 462 (Tenn.Cr.App.1996), “failure to consider multiplicity
of counts would be ‘simply irrational and offensive to the underlying
principles of sentencing’”.


      The extent of the financial losses reflect the seriousness of the
offense. Zeolia, at 462. As previously stated, the defendant stole property
valued at almost $190,000.00. The defendant was not ordered to make
restitution to those victims who sustained losses.


      The only evidence of factors favoring a sentence other than
confinement is that the defendant has only one prior felony conviction, has
a family and was gainfully employed until he began his life of crime. We
find that this evidence is outweighed by the serious nature of the offense.


      In summary, we hold that the presumption of alternative sentencing
was rebutted by the seriousness of the offense when the offense occurred
over a period of three years, involved 13 separate acts of theft, and the
property stolen had a value of approximately $190,000.00.


      The defendant also contends that the trial court erred in excluding
evidence of sentences in other cases imposed by the judges of the 12th
Judicial District. The defendant cites not authority for this position for the
obvious reason that none exists. This issue is without merit.


      For the reasons stated herein, the judgment of the trial court is
affirmed.



                                     ________________________________
                                     William B. Acree, Jr., Special Judge




CONCUR:

__________________________
Judge Joe G. Riley


__________________________
Judge Alan E. Glenn
