OPINION ON PETITION TO REHEAR
The appellant has filed a respectful petition to rehear, touching on several aspects of our opinion in this case. However, only one of the matters raised in the petition can arguably be characterized as not having been fully treated in the original opinion, and that is the appellant’s insistence that our “holding [him] to a different standard due to his status [as a law enforcement officer] is in violation of the Eighth and Fourteenth Amendments to the United States Constitution,” based on Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), and Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).
In our original opinion, we noted that the offense of bribery was not intrinsically “heinous” under the holding of Mattino v. State, 539 S.W.2d 824 (Tenn.Cr.App.1976). We held, however, that the circumstances of this case, involving bribery by a law enforcement officer in a case then under official investigation, were sufficient to make the offense “heinous” within the meaning of Mattino, and thus sufficient to support the trial court’s denial of probation. In reaching this conclusion, we determined that in committing the crime for which he was convicted, the appellant “violated his oath of office, and ... thereby breached the public trust,” a factor which the trial judge could weigh in ruling on the probation petition of a public official.
It is true that this holding applies a rather strict standard to the appellant, precisely because he was a law enforcement official at the time of the offense. But it does so in the context of the probation setting. Thus this ease is not controlled by the decision in Robinson v. California, supra, in which the United States Supreme Court held that a state statute making it a criminal offense for a person to be addicted to the use of narcotics violates the Eighth Amendment’s prohibition against cruel and unusual punishment, because it criminalizes a “status” and penalizes the accused for being subject to “an illness which may be contracted innocently or involuntarily.” 370 U.S. at 666-67, 82 S.Ct. at 1420. Here it is not the appellant’s status as an officer of the law which gave rise to his conviction,* but his action in soliciting a bribe. Nor was his conduct “innocent” or “involuntary.”
Moreover, we find the decision in Powell v. Texas, supra, equally inapplicable to the facts before us. There a plurality of the Supreme Court refused to reverse a conviction for public drunkenness despite the argument that the relevant state statute punished the status of chronic alcoholism. The dissenters in Powell based their disagreement with the result on their conclusion that “criminal penalties [should] not be inflicted upon a person for being in a condition he is powerless to change.” 392 U.S. at 567, 88 S.Ct. at 2171 (Fortas, J., dissenting). But even assuming the validity of the dissent in Powell, the appellant’s status in this case cannot be said to constitute a condition of that sort.
We repeat: the status of a public official “whose sworn duty is to uphold the law” may properly be considered in determining whether that public official should be given a suspended sentence for a crime committed in the course of his or her official duties. We conclude that such a consideration in the denial of probation does not violate the Eighth and Fourteenth Amendments. We therefore find no grounds to reopen this appeal or to disturb our original opinion.
The petition for a rehearing is denied.
But see T.C.A. Title 39, Chapter 32, prohibiting “official misconduct, negligence and misconduct.” Under these statutes, one’s status as a public official is an essential element of ti.. crime. Our research fails to indicate that any of these offenses have been successfully attacked on the basis of the Robinson opinion.