# FILED
January 21, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NA SHVILLE DECEMBER 1997 SESSION

) STATE OF TENN ESSEE, ) ) C.C.A. No. 01C01-9702- CC-00063 Appellee, ) ) Hickman County V. ) ) Honorable Corne lia A. Clark, Judge ) JOHN E. TIDWELL, ) (Sentencing) ) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: John H. Henderson John Knox Walkup District Public Defender Attorney General & Repor ter Elaine B. Beeler Georgia Blythe Felner Assistant Public Defender Counsel for the State P.O. Box 68 450 James Robertson Parkwa y Franklin, TN 37065-0068 Nashville, TN 37243-0493 Joseph D. Baugh District Attorney General Ronald Davis Assistant District A

ttorney General P.O. Box 937 Franklin, TN 37065

OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, John E. Tidwell , pled guilty to ag gravated burglary and theft of property over $1000 i n June 1996. The parties agreed that the defendant would receive a sentence of three years on the aggravated burglary and two yea rs on the t heft. T he court t hen sent enced th e appella nt to serve five years on probation, with seventy-five da ys to be served in j ail and 300 hours of community service w

ork. The appellant was al so ordered to pay restitution.
The app ellant’s sole issue on appea l is whethe r the trial court sho uld have ordered him to serve sev enty-five days in j ail. We affirm.
On January 17, 1996, the appell ant and three juveniles s ought out a house to burglarize. After determining that no one w as at home, the appellant and these juv

eniles brok

e into the home

of Gerald Br

eece and took items belonging

to him. After

he was arr

ested, the appellant confes sed to the cr

ime and helped police locate some of the stolen item s.
The appellant argues that he is a suitable candidate f or full probation. He contends that he has no criminal history before these offenses, alt hough he admitted to underage drinking and smoking marijuana. He also asserts that he is working toward obtaining his GED. He further notes that he admitted his involvement in the burg lary and assisted the pol ice in recovering the stolen items.

The state maintains that the trial court properly sentenc ed the appellant. First, although the appellant was ordered to serve seventy-five days in jail, only thirty days wer

e to be served day-for- day, with the remainder to be served in 48- hour increments. This plan was created so that the appellant could m aintain employment.-3- When an appel lant cha llenge s the le ngth, r

ange, or manner o

f servi ce of a sentence, this Court conducts a de novo review with a presumption that the determinations made by the tri al court are correct. Tenn. Code Ann. § 40-35- 401(d) (1 990). Howe ver, this p resumpt ion is con ditione d on an af firmati ve indication in the record t hat the trial court consi dered the sentencing principles and all relevant facts and circumstances. State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).
The appellant bears the burden of show ing that the sentence was improper. Id. In determining whether the appellant has met this burden, this Court must consider (a) the evidence adduced at trial and the sentencing hearing; (b) the present ence report; (c) the pri nciples of sentencing; (d) the argumen ts of cou nsel; (e) the na ture and charac terist ics of th e offense; and (f) the appellant’s potential or lack of potential for rehabili tation or treatment. Tenn. Code Ann. §§ 40-35-103(5), -210(b) (1990).
From the record before us, the tr ial court did indicate th at the appellant was an appropriate candida te for alternative sentenci ng, just not full probation. The court denied full probation because of the appellant’s inconsistent work history, including a three-month period in which he did not work at all; the fact that he had not obtained his GED; a nd his past criminal behav ior, which included underage drinking and marijuana usage. In denying full probation, the trial court noted that some amount of incarceration was necessary to av oid depreciating the seriousness of the offense. T enn. Code Ann. § 40-35-103(1) (1990).

After carefully review

ing the record before us, w e conclude that the trial court did not err in denying full probation to the appellant. Probation is a privilege, not a r

ight. We affirm the trial judge’s deci sion.-4- ______________________________ PAUL G. SUMMERS, Ju dge
CONCUR:

______________________________ JOSEPH B. JONES, Presiding Judge

______________________________ WILLIA M M. BARKER, Judge