IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY 1998 SESSION
STATE OF TENNESSEE, * C.C.A. # 03C01-9707-CC-00293
August 21, 1998
Appellee, * BLOUNT COUNTY
VS. * Hon. D. Kelly Thomas, Jr., Judge
Cecil Crowson, Jr.
PHILLIP WAYNE DAVIS, * (Driving Under the Influence, Fourth
Offense, and Driving Appellate C ourt Clerk
on a Revoked
Appellant. * License, Second Offense)
*
For Appellant: For Appellee:
Natalee S. Hurley John Knox Walkup
Asst. District Public Defender Attorney General and Reporter
419 High Street
Maryville, TN 37804 Todd R. Kelley
(at trial) Assistant Attorney General
425 Fifth Avenue North
Julie A. Martin, Attorney Second Floor, Cordell Building
P.O. Box 426 Nashville, TN 37243-0493
Knoxville, TN 37901-0426
(on appeal) Philip Morton
Assistant District Attorney General
363 Court Street
Maryville, TN 37804
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Phillip Wayne Davis, entered guilty pleas to driving
under the influence, fourth offense, and driving on a revoked license, second
offense. The trial court imposed an eleven-month, twenty-nine-day sentence, with a
release eligibility date at seventy percent, for driving under the influence and
ordered a concurrent sentence of eleven months and twenty-nine days, with a
release eligibility date of seventy percent, for driving on a revoked license. The
defendant was fined $1,600.00.
In this appeal of right, the defendant claims that the trial court erred by
sentencing the defendant to serve an effective term of "over eight months." We find
no error and affirm the judgment of the trial court.
The underlying facts were stipulated:
The arresting officer observed the defendant's vehicle
traveling very slowly and almost striking a curb on
Foothills Mall Drive. A traffic stop was made and the
officer noticed that the defendant was unsteady on his
feet, had bloodshot eyes, and a strong odor of alcohol.
The defendant could not perform simple field sobriety
tests.
At the time, the defendant's license was in a revoked status. A breathalyzer
examination indicated that the defendant had a blood alcohol level of .12.
The defendant argues that his crimes are not so severe in nature that
they require incarceration of approximately two hundred fifty-four days. He
contends that the trial court gave no reasons for increasing the sentence above the
minimum.
When a challenge is made to the length, range, or manner of service
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of a sentence, it is the duty of this court to conduct a "de novo review ... with a
presumption that the determinations made by the court from which the appeal is
taken are correct." Tenn. Code Ann. § 40-35-401(d).
Our review requires an analysis of (1) the evidence, if any, received at
the trial and sentencing hearing; (2) the presentence report; (3) the principles of
sentencing and the arguments of counsel relative to sentencing alternatives; (4) the
nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)
any statements made by the defendant in his own behalf; and (7) the defendant's
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and
-210. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In misdemeanor sentencing, a separate sentencing hearing is not
mandatory but the court is required to provide the defendant with a reasonable
opportunity to be heard as to the length and manner of the sentence. Tenn. Code
Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance
with the principles, purposes, and goals of the Criminal Sentencing Reform Act of
1989. Tenn. Code Ann. §§ 40-35-104, -117, and -302; State v. Palmer, 902
S.W.2d 391, 393 (Tenn. 1995). The misdemeanor offender must be sentenced to
an authorized determinant sentence with a percentage of that sentence designated
for eligibility for rehabilitative programs. Generally, a percentage of not greater than
75% of the sentence should be fixed for a misdemeanor offender; however, a DUI
offender may be required to serve the full 100% of his sentence. Palmer, 902
S.W.2d at 393-94. In determining the percentage of the sentence, the court must
consider enhancement and mitigating factors as well as the legislative purposes and
principles related to sentencing. Id.
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Upon service of that percentage, the administrative agency governing
the rehabilitative programs determines which among the lawful programs available is
appropriate. The trial court retains the authority to place the defendant on probation
either immediately or after a term of periodic or continuous confinement. Tenn.
Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider
public or private agencies for probation supervision prior to directing supervision by
the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The governing
statute is designed to provide the trial court with continuing jurisdiction in
misdemeanor cases and a wide latitude of flexibility. The misdemeanant, unlike the
felon, is not entitled to the presumption of a minimum sentence. State v. Creasy,
885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).
The defendant, forty-six years of age, has three prior convictions for
driving under the influence and four prior convictions for driving on a revoked
license. He has other convictions as well; at least two are felonies. Prior attempts
at alcohol abuse treatment have been unsuccessful. The trial court indicated some
leniency by suggesting that the defendant would serve "the minimum mandatory
one hundred twenty days before he's eligible for any kind of release or work
programs." Under all of the circumstances, the sentences imposed are fully
warranted.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Presiding Judge
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CONCUR:
_____________________________
Joseph M. Tipton, Judge
_____________________________
David H. Welles, Judge
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