# FILED September 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE AUGUST 1998 SESSIO N

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9705-CC-00167 Appellee, ) ) MONTGOMERY COUNTY VS. ) ) HON. JOHN H. GA SAWAY III, MEL VIN WAYNE ARCHU LET A, ) JUDGE ) Appellant. ) (Sentencing)
FOR THE APPE LLANT: FOR THE APPELLEE: J. TIMOTHY STREET JOHN KNOX WALKUP 136 Fourth Ave., South Attorney General & Repor ter Franklin, TN 37064 (On Appeal) GEORGIA BLY THE FELNER Asst. Attorney General MICHAEL JON ES Cordell Hull Bldg., 2nd Fl. Public Defender 425 Fifth Ave., North Nashville, TN 37243-0493 COLLIER GOODLETT Asst. Public Defender JOHN W. CARN EY 109 South Second St. District Attorney General Clarksville, TN 37040 (At Trial) WILLIAM CLOUD Asst. District Attor

ney General 204 Franklin St., Suite 200 Clarksville, TN 37040

OPINION FILED:
AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

The defend ant was

indict ed for th eftof prope rty over five hundred dollars ($500) in value. He pled gu ilty to theft of property less than five hundred dollars ($500). Followinga sentencing hearing, the trial court sentenced the defendant to elev en months and twenty-nine days , to s erve six months w ith the balance probated. The defendant now appeals and arguesthat the trial court err ed by not suspending his entire sentence. After a review

of the record and applicable la w, we find that

the trial court did not err in denying the defenda nt’s re quest for probation. The judgment of the cou rt below is affirmed. In the summer of 1995, the defendant noticed several tire rims outside of Huff’s Tractor

Service. He then took

the rims and several days later he attempted to sell the rims to Friendly Tir

e. Friendly Tire notic

ed markings on the

rims indic

ating the r

ims were the same rims Friendly Tire had sent to Huff’s Tractor Service for repair. Friendly Tire became suspicious and notified M r. Huff of the atte mpted sal e. Mr. H uff subsequently reported the incident to the police.

When a defendant complains of his or her sentenc e, we must conduct a de novo review

with a pres umption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appeal ing party. T.C.A. § 40-35-401(d) Sent encing Commission Comments. This presumption, however, “is conditioned upon the affirmative showing in the record that the trial court considered the s entencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (T enn. 1991).3 The defendant complains that the court erred in not granting his request for full probation. In determining whether the d efendan t should be granted probation,the court must consider the defendant’s crimi nal record, social his tory, present physi cal and mental condition, the circumstance s of the o ffenses, the deterrent effect upon the crimin al activity of the accused as well as others, and the defendant’s potential f o r rehabilitation. State v. Bonestel , 871 S.W.2d 163, 16 9 (Tenn. Crim. App. 1993).

Based on the lengthy crimin al record revealed in the presentence repor t and the absence of a reasonable ex pectati on of rehabilitation, the judg e denied probation. The trial judge specific ally stated that, in li ght of the prior convictions, there was no reason for the court to beli eve that a probated sentence w oul d bring about rehabilitation. The trial judge concluded that the defendant appeared to be incapable of being rehabilitated. The ev idence presented fully suppor ts these findings.
The defendant further contends that the trial co urt e rred in failing to note on the record what enhancement and mitigating factors, if any, were relied on in the decision not to grant probation. This cont ention is without merit . This Court has previously held the Criminal Sentencing Reform Act does not require trial judges to explicitly list on the record applicable enhancing and mitigating factors in misdemeanor cases. State v. Loden , 920 S.W.2d 261, 266 (Tenn. Crim. App. 1995).

In sum, the evidence presented full y supports

the tri al court’s findings. Furthermore, these findings support the trial court’s concl usio n that probation is not proper for this defendant. The judgment of the trial court is there fore affirmed.

______________________________ JOHN H. PEAY, Judge4

CONCUR:

______________________________ THOMAS T. W OODALL, Judge

______________________________ L. TERRY LAFFERT Y, Special Judge