State v. Bunch , 656 S.W.2d 404 ( 1983 )

OPINION

DWYER, Judge.

The appellant, charged with grand larceny, pled guilty to committing the reduced offense of petit larceny and received a sentence of not less than two nor more than five years.

His petition for suspended sentence was denied by the trial court after all of his Stiller v. State, 516 S.W.2d 617 (Tenn.1974) rights were accorded to him. The trial court reduced the sentence to confinement for eight months, and thereafter if appellant made restitution within three months he would be placed on probation for five years.

The sole issue: Was the denial of probation an abuse of discretion?

The appellant testified that he and some of his friends were drinking beer and smoking marijuana in the vicinity of Center Hill Lake. They observed two ladies on the bank of the lake who had left their purses some twenty feet further up on the bank. The appellant lost the flip of a coin and was elected to become the thief of one of the purses. He was arrested the same day as the theft. Eight days later in Smith County, while painting a friend’s home, he entered the house and stole some jewelry and other items that belonged to his friend in order to meet his expenses from the first theft case. Appellant testified that his conscience bothered him, and he turned himself and the stolen items in to the police a short time after the second theft. This case was dismissed when the Smith County Police lost the stolen articles.

The present difficulties of appellant occurred while he was divorced, but he has since remarried his former wife. He has an eleventh-grade education and is the father of two children. He currently earns approximately $100 per week as a farm worker.

Appellant’s wife, sister and the chief deputy sheriff for Smith County testified favorably for the appellant. The probation officer testified that the victim of the purse theft felt sorry for the appellant’s family and only wanted restitution for her insurance company; she was not opposed to probation.

The probation report stated that even though appellant had no significant prior record, his reputation in the community was poor.

The attorney general asked no questions of any witness and offered no proof; this was the antithesis of the tenets found in Stiller v. State, supra, which obliges prosecutors to promote the public welfare by opposing unworthy candidates for probation.

We are not to second-guess the trial court in matters of this kind. Mattino v. State, 539 S.W.2d 824 (Tenn.Cr.App.1976). The grant of probation is a largesse of the law and cannot be demanded as a right. State v. Correll, 626 S.W.2d 699 (Tenn.1982). The burden is on appellant to show that he is entitled to probation. State v. Ricker, 611 S.W.2d 839 (Tenn.Cr.App.1980). We are to uphold the trial court’s judgment if there is substantial evidence in the record, as there was here, to support the denial. State v. Grear, 568 S.W.2d 285 (Tenn.1978).

On the one hand there is evidence that the appellant was working, married, and the father of two children; witnesses testified that appellant, if probated, would be a good risk. On the other side of the scale, the appellant stole a purse on the flip of a coin when he had been drinking and smoking marijuana. In a short period of time after being released on bond, he entered the home of a trusting friend and stole his goods. The probation report brands appellant’s reputation as poor.

The nature and circumstances of the offense would not by themselves be sufficient factors to deny probation in this case. State v. Travis, 622 S.W.2d 529 (Tenn.1981). Likewise, the fact that appellant’s offense was reduced to petit larceny is not a proper factor to consider. Mattino v. State, supra. The trial court in this case relied on the deterrence factor. It is implicit in the denial that while appellant might benefit from probation, society as a whole would not. Stiller v. State, supra. The trial judge expressed the view that appellant’s confinement would deter similar crimes at the Center Hill Lake area. It is obvious that the public humiliation of being arrested was not enough to deter appellant, since he committed a second theft from a trusting friend only a few days after the first arrest. This fact alone is enough to support the denial. Powers v. State, 577 S.W.2d 684 (Tenn.Cr.App.1978); T.C.A. § 40-21-104.

Summed up, the evidence in this record would support the trial court’s judgment in either direction. Since this is so, the denial is not based on a discretion that is palpably capricious or arbitrary. State v. Grear, supra. The issue overruled, the judgment of the trial court is affirmed.

WALKER, P.J., concurs. DAUGHTREY, J., dissents.