# FILED
July 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JUNE 1997 SESSION

STA TE OF TENN ESSEE, ) ) C.C.A. N o. 02C01-9608-C R-00275 Appellee, ) ) Shelby C ounty V. ) ) Honorab le Bernie W einma n, Judge ) WILLIAM BELL, ) (Sentencing- Habitual Motor Vehic le ) Offender) Appellant. )

FOR TH E APPEL LANT: FOR THE APPELLEE: Larry E. Fitzgerald Charles W. Burson Attorney at Law Attorney General & Reporter 22 N Second Street, Suite 410 Memphis, TN 38103 Georgia Bl ythe Felner Counsel for the St ate Criminal J ustice Div ision 450 James Roberts on Parkway Nashvil le, TN 37243-0493 William L. Gibbons Distric t Attorney General Reginald R . Henderson Assistant D istrict A

ttorney Gener

al 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILE D: ___________________
AF FIRMED
PAU L G. SUMM ERS, Judge

O P I N I O N1 The stat e argues thatthe cou rt 's power t o suspend t he appel lant 's sentenc e is stat utor il y r estr ict ed by Tenn. Code Ann. § 55- 10-616( c) ( 1993). This p rovi sion stat es that the cou rthas no power to sus pend a sent ence ofa pers on convi cted of operat ing a motor

vehic le whi le i n viol ati on of a c ourtorder . I n State v. Rick y Fife , No. 03C01-9401 -CR- 00036, Bl ount Co. (Tenn. Cri m. App. June 15 , 1995) , t his Courtheld t hat t he 1989 Sente ncin g Refor m Act super seded al l f ormer pr ovisi ons and thata motor vehi cle off ender' s fel ony sent ence coul d be suspend ed purs uant t o Tenn. Code Ann. § 40-35- 303(a) (1990) . We, ho we ve r, inv estig ate d th is issu e. O ur re sea rch re ve als th at T en n. C od e A nn . § 5 5-1 0-6 16 (c) w as e na cted at th e sa m e tim e as T en n. C od e A nn . § 4 0-3 5-3 03 (a). P are nth etica lly, this p an el qu estio ns w he the r the Ge ne ral A sse m bly int en de d to im plicitly repeal Secti on 55-10- 616(c) . However , as demonst rat ed by our opini on in t he ins tantcase, regardles s of whet her a motor vehic le offender

is o r i s not el igi ble f or al ter nati ve sente ncin g, suc h pers ons ar e cert ainl y notalway s enti tl ed to al ter nati ve sen tenc ing. -2- The a ppel lant , Willi am Be ll, ple d gu ilty to the u nlaw

ful p osse ssi on of a handgun and to unl awfully operating a mot or vehicl e while be ing a habitual motor vehicle offender. He received an ef fective sentence of one year. He appeals, contending the trial cour t erred in fail ing to suspe nd his sentence and in denyi ng him probation. Upon revi ew, weaffirm the judgment of thetrial cour t. 1

Tennessee Code Annotated § 40-35-103 (1 )(A)-( C) (1990) s ets out sentencing considerations which are guidelines

for determiningwhether or not a defendant should be incarcerated. The se include: (1) the need to protect society by

restraini ng a defendant hav ing a longhistory of criminal conduct; (2) the need to avoi d depreciatingthe seriousnes s of the offense; and (3) t he concept that confinement is partic ularly appropriate to deter others l ikely to commit similar

offenses. Tenn. Code Ann. § 40-35-103 (1) (A)-(C) (1990). In review ing a gr

ant or denial of probation, this Court also considers ( 1) the circumstances

of the offense; (2) the defendant’ s criminal record; (3 ) his/her social history; (4 ) present phy sical and mental condition; and (5) the deter rent effect of the sentence. State v. Ch arlton , 746 S.W.2d 467 (Tenn. Crim. App. 1987). This C ourt has prev iously det ermined that a neg ative findingof any one of these factors is

sufficient to suppor

t a denial of probat ion. State v. Bar on , 659 S.W .2d 811, 815 (Tenn . Crim. App. 1983). W e have held that an appellant 's lack of candor at

the sentencinghearing i s sufficient to ju stify the deni al of an alternative sentence. State v. Ch risman , 885 S. W.2d 834, 840 (Tenn. C rim. App. 1994); State v. Ne eley , 678 S.W .2d 4 8 (Te nn. 1 984 ). Can dor is prob ative on the issue of amenabi lity to rehabilitati on, the impetus behi nd probation.-3- Appellants’ dishonesty with the trial court and with themselves reduces th eir rehabilitati ve potential

.
The trial judg e stated that he was denyingthe appellant's request for alternative sentencing in order to de ter the appella nt and others from dr iving when such conduct has been pro hibited by court order. Furthermore , he felt the appellant was not credible and had lied to the court throughout the en tire sentencing hea ring. We find no error i n this ruli ng.

The record reveals that the appel lant took his drivingrestrict ions lig htly. He admitted to driving his vehicle on several occasions in violation of the court's order. Based u pon the appellant' s lack of candor , the need to avoid depreciati ng the seriousnes s of the offense, and the need for de terrence, the denial of alternative sentencing was proper. Incarceration will insure the appellant's compliance and hopefull y enlig hten him to the ser iousness of his offense.

AFFIRMED.

________________________________ PAUL G. S UMMERS, Ju dge-4- CONCUR:

___________________________ DAVID H. W ELLES , Judge

___________________________ JOE G. RIL EY, Judge