denying incarceration on deterrence grounds, but stating "[i]f marijuana trafficking was a particular problem in Cocke County, the State could have presented a law enforcement officer to relate this fact”
How later courts described this case
- denying incarceration on deterrence grounds, but stating "[i]f marijuana trafficking was a particular problem in Cocke County, the State could have presented a law enforcement officer to relate this fact”
- noting that a conviction for a criminal offense may not be based upon conjecture, guess, speculation or mere possibility
- "The trial court is apparently of the opinion that trafficking in marijuana is not a particular problem in Cocke County. Thus, the denial of probation in this instance is not necessary to deter the conduct of others in the community.”
Written by the judges who cited it.
The opinion
BYERS, Judge,
concurring.
I concur with my colleagues in affirming the drug convictions and in dismissing the charge of going armed. I further concur with them in the sentence fixed for the defendant Edward Black. I do not, however, subscribe to the statements in the majority opinion dealing with the level of evidence required to show a deterrence factor in passing on probation.
My colleagues read State v. Horne, 612 S.W.2d 186 (Tenn.Cr.App.1980), and State v. Vance, 626 S.W.2d 287 (Tenn.Cr.App. 1981), to require testimonial evidence of the fact that a particular crime is significant enough to require a denial of probation on the basis of deterrence. I do not believe either decision makes such testimony essential for such a finding. Although this kind of evidence would go a long way in supporting the finding of a trial judge, to make it essential would prohibit the application of judicial notice, by the trial court and this Court, of facts which are known by reason of the presence of multiple cases of a particular kind on the docket of the courts. I would not, therefore, read Home and Vance so restrictively.
Neither do I concur with the suggestion that T.C.A. § 40-35-102(2) gives weight to comparative sentences between particular defendants. Absolute parity in sentencing is not required by the general purposes of the Sentencing Reform Act. See State v. Leonard Moss, 727 S.W.2d 229 at Section 11.A. (Tenn., Knoxville, 1986).