State v. Tina Overstreet

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1997 SESSION
January 28, 1998
STATE OF TENNESSEE, ) Cecil W. Crowson
) Appellate Court Clerk
No. 01-C-01-9704-CR-00131
APPELLEE, )
) Davidson County
v. )
) Thomas H. Shriver, Judge
TINA MARIE OVERSTREET, )
) (Sentencing)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jay Norman John Knox Walkup
Attorney at Law Attorney General & Reporter
213 Third Avenue, North 500 Charlotte Avenue
Nashville, TN 37201 Nashville, TN 37243-0497
Georgia B. Felner
Counsel for the State
Cordell Hull Building, Second Floor
425 Fifth Avenue, North
Nashville, TN 37243-0493
Victor S. Johnson
District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201
John Zimmermann
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201
Pam Anderson
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201
OPINION FILED: ______________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Tina Marie Overstreet (defendant), was convicted of two counts of
delivery of marijuana, Class E felonies, following her pleas of guilty to these offenses. The
trial court, finding the defendant was a standard offender, imposed a Range I sentence
consisting of a $2,000 fine and confinement for one (1) year in the Davidson County
Workhouse for each count pursuant to a plea agreement. It was further agreed the
sentences were to be served concurrently. The trial court ordered the defendant to serve
from November 22, 1996 to December 23, 1996 in the Metro County Jail. The balance of
the sentence is to be served on probation. In this court, the defendant contends the
“sentence of confinement imposed is excessive.” After a thorough review of the record,
the briefs submitted by the parties, and the law governing the issue presented for review,
it is the opinion of this court that the judgment of the trial court should be affirmed.
The defendant was twenty-nine years of age when she was sentenced. She is
married and three children were born to this union. The defendant and her husband were
separated when these offenses occurred.
According to the presentence report, the defendant has a tenth grade education.
Her work history is sporadic. She has been found guilty of three misdemeanors. The
presentence report indicates the defendant has been smoking marijuana since she was
sixteen years of age.
The defendant sold a pound of marijuana to an undercover police officer on two
separate occasions. Apparently a friend of the defendant, acting as a confidential
informant, arranged the sales.
The trial court did not discuss his reasons for requiring the defendant to serve
approximately thirty days in jail as required by the Tennessee Sentencing Reform Act of
1989. Therefore, this court will conduct a review of the record without a presumption of
correctness.
The record establishes the defendant has a previous history of prior convictions as
well as criminal behavior. Tenn. Code Ann. § 40-35-114(1)(1997 Repl.). This factor must
be considered, along with the fact the defendant was able to obtain the two pounds of
marijuana with relative ease. When asked by the undercover officer when she would like
to sell the two additional pounds of marijuana, she indicated her contact would be going
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to Texas in the near future to purchase sixty-five pounds of marijuana. This indicated the
defendant was closely associated with her supplier.
The trial court did not abuse its discretion by requiring the defendant to serve
approximately thirty days of her sentence. Confinement is required to avoid depreciating
the seriousness of the offense. Tenn. Code Ann. § 40-35-103(1)(B)(1997 Repl.).
Confinement is also necessary to deter the defendant as well as others from engaging in
the sale of illicit narcotics, especially large quantities of illicit narcotics. Tenn. Code Ann.
§ 40-35-103(1)(B)(1997 Repl.). Finally, the defendant was granted probation in 1993.
These offenses occurred in 1996. The defendant continued to smoke marijuana. In short,
probation was not a motivation for the defendant to change her lifestyle of engaging in
criminal conduct. Tenn. Code Ann. § 40-35-103(1)(C)(1997 Repl.). This court is hopeful
the defendant will be able to rehabilitate herself and learn to be a productive citizen and
a good and loving mother to her children.
________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
_____________________________________
PAUL G. SUMMERS, JUDGE
_____________________________________
WILLIAM M. BARKER, JUDGE
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