### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE STATE OF TENNESSEE v. ROBERT LEE DAY Direct Appeal from the Circuit Court for Blount County Nos. C-11464, 11465 D. Kelly Thomas, Judge

No. E1999-01380-C CA-R3-CD - Dec ided May 25, 2000

The defendant, Robert Lee Day, having a lengthy history of drivi ng offenses, is no t entitled to immediate

probation on a one-year sentence for violation of the Motor

Vehicle Habitual Offender's Act. Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
W ADE , P.J., delivered the opinion of the court, in which T IPTON and W ITT , JJ., joined.
Julie A. Rice, Contract Ap pellate Defend

er (on appeal),

Knoxville, Tenne

sse e, and Stacey Nordquist , Assistant District Public Defender ( at trial), Mar yville, Tennessee, for the appellant, Robert Lee Day.
Paul G. Summers, Attorney General & Reporter, Patricia C. Kussman, Assistant Attorney General, and John Bobo, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant, Robert Lee Day, pled guilty to criminal impersonation and violation of the Motor Vehicle Habitual Offender's Act. See Tenn. Code Ann. §§ 39-16-301, 55-10-616. The trial court imposed a

sentence of one

year for the hab

itual motor vehicle

offender violation, with 90 days in jail on work rele

ase and the bala

nce on supervis

ed p robation. A conse

cutive three-mo

nth sentence, to be served on probation, was imposed for the criminal impersonation. Inthis appeal of right, the defendant argues that the trial c ourt erred by imposing the 90-day jail sentence. The judgment of the trial court is affirmed.

On January 3, 1999, the defendant was stopped by police for a registration violation. Because the defendant did

not have a valid driver's license, he informed Officer Rick Arnold that his name was John William Day. The defendant also provided a false date of birth.

At the sentencing hearing, the defendant, an unemploy ed p ainter and construction worker, explained that

he provided a false name because he "didn't want to [go] to jail

and lose [his] job." Twenty-six years old at the time of the sentencing hearing, the defendant is single and resides-2-

with his mother, his

stepfather, and a stepbrother. Although he droppe d out of school in the

tenth grade, the defendant has since obtained his Graduate Equivalent Diploma.

The defendant, who last he ld e mployment with a paint contractor but quit due to a disagreement

with his supervisor, has several prior offenses which include theft of less than $50 0 in 1999, driving on a revoked license in 1997, and possession of marijuana in 19 96. Ot her convictions between 1991 and 1995 include possession of burglary tools, driving on a suspended license, and three counts of driving on a revoked license. In 1994, he was convicted of four separat

e traffic offenses: two instances of speeding, one reckless driving of fense, a nd one offense of disregard of a red t

raf fic signal. The defendant reported that he was arrested for possession of marijuana as a juvenile.

The defendant

reported having consumed alcohol regularly since the age of 13. While he denied using marijuana, he tested positive for marijuana in a

drug screen conducted prior to the sentencing hearing. He described himself as in good mental health and without an y dependenceupon drugs or alcohol. Other than having a problem with his right knee, the defendant is in good physical health. He recently recovered from a broken foot. At the sentencing hearing, the defendant explained that he was driving his vehicle because he had no other means of

transportation to and from his place

of employment. The

defendant w as on bail for theft charges when he was arrested on these offenses.

The trial court found two enhancemen t factors: that the defendant had a previous history of criminal convic tions in addition to

those necessary to establish the proper range and that the defendant had demonstrated an unwillingness to c

omply with

conditions of a sentence involving release into the community. See Tenn. Code Ann. § 40-35-114(1), (8). As mitigating factors, the trial court observed that the defendant's conduct neither thre atened nor caused injury and that the defendant had committed the c

rimes due to his des

ire to provid

e for h is family. See Tenn. Code Ann

. § 40-35-113(1), (7). The trial court imposed a jail sentence due to the defendant's lack o f candor, his poor rehabilitative prospects, and his prior criminal history.

Among the factors applicable to probation consideration are the circumstances of the offense, the defendant's criminal record, social history and present condition, and the deterrent effect upon and best interest of the defendant and the public. State v. Grear , 568 S.W.2d 285 (Tenn.1978).
In our view, the trial co urt did not c ommit error. At a relatively young age, the defendant has a number of prior

criminal offenses, most of which are traffic-related. He continued to drive despite having lost his driving privilege s several years

prior to these off

enses. He appar

ently did so for some time before he was caught. His explanat ion to the trial court when asked why he tested positive for marijuana in a drug screen, taken just before his sentencing hearing, was that he had "walked through a room with marijuana smoke in it." The t rial court determined that the response was not a candid

explanation of the circumstances. The evidence does not preponde

rate against that conclusion.

Accordingly, the judgment is affirmed.-3-