IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 27, 2001
STATE OF TENNESSEE v. VINCENT THOMAS GALLO
Appeal from the Circuit Court for Jefferson County
No. 6743 O. Duane Slone, Judge
No. E2000-03025-CCA-R3-CD
July 24, 2001
The defendant was convicted upon his guilty pleas to three counts of unlawfully photographing
individuals in violation of their privacy, a Class A misdemeanor, and received concurrent eleven-
month-twenty-nine-day sentences to be served in confinement in the county jail. The defendant
appeals the trial court’s denying him probation of any type. We affirm the denial of probation, but
we remand the case for entry of corrected judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part
and Remanded
JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
ROBERT W. WEDEMEYER , JJ., joined.
Douglas A. Trant, Knoxville, Tennessee, for the appellant, Vincent Thomas Gallo.
Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
and Alfred C. Schmutzer, Jr., District Attorney General, for the appellee, State of Tennessee.
OPINION
This case comes to us upon an enigmatic record. The defendant was charged by presentment
with photographing three females, one a minor, who reasonably expected privacy at the time, with
the photographs, offending or embarrassing to an ordinary person, being taken for the purpose of the
defendant’s sexual arousal and gratification. See Tenn. Code Ann. § 39-13-605(a). The record
reflects that the prosecution was in the middle of presenting its case-in-chief to a jury when the
defendant entered guilty pleas to the charges. In accepting the guilty pleas, the trial court stated that
it had already heard sufficient proof of the offense. In a transcript titled “Sentencing Hearing,” the
record reflects that the trial court based its sentences upon “the evidence that was introduced in the
trial in this matter, the victims’ impact statements, all the exhibits introduced . . . today, including
the defendant’s prior convictions, the circumstances surrounding the conviction for sexual battery,
the defendant’s evidence of his bad health and circumstances of his family . . . .”
The major problem in this case stems from the fact that none of the evidence and items
mentioned by the trial court are in the record before us. Other than some statements by counsel and
the trial court before and during the sentencing, nothing presents itself for us to make any meaningful
de novo review of the trial court’s determination or of the evidence upon which the sentences should
be based. Absent a full record of the evidence and proceedings in the trial court that are necessary
to convey a fair, accurate and complete account of what transpired with regard to the defendant’s
sentences, we must presume that the trial court’s sentencing determinations are correct. See State
v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).
We note an anomaly, though, in the judgments entered by the trial court. The sentencing
hearing transcript reflects that the trial court sentenced the defendant to “11 months and 29 days at
75%.” However, the judgment of conviction forms used by the trial court do not comply with the
form provided in Rule 17, Tenn. Sup. Ct. R. Rather, the trial court used out-of-date forms which
provide both for a percentage of service before program or work release is available, Tenn. Code
Ann. § 40-35-302(d), which the trial court left blank, and for a percentage before release from
confinement can occur, see Tenn. Code Ann. § 41-21-236(f)(4), which the trial court ostensibly
made seventy-five percent. However, the forms are erroneous because the release from confinement
percentage based upon Tenn. Code Ann. § 41-21-236(f)(4) has not existed since our supreme court
held that this subsection was impliedly repealed by enactment of the 1989 Sentencing Act. See State
v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). Being unsure what the trial court intended by its
reference to “75%,” we believe that a remand is in order.
The trial court’s denying the defendant probation is affirmed. The case is remanded to the
trial court for entry of appropriate judgments.
___________________________________
JOSEPH M. TIPTON, JUDGE
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