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State v. Bartlett4/9/1998
on March 4, 1994. There is no reference to specific time. The video tape showed that the offense occurred between 10:13 and 10:21 P.M. Page testified that he saw the defendant driving between 9:30 and 10:45 P.M., clearly within the time frame of Officer Howell's high-speed chase of the defendant. Thus, the crimes charged did not qualify as "separate" under the prohibitions of Rule 404(b). Rollins testified that he saw the defendant three or four times on March 4, 1994, beginning as early as 7:00 P.M.; he testified that he observed the defendant driving the vehicle at approximately 10:00 P.M. Again, the event was not "separate." Thus, the evidence admitted at trial was not inadmissible character evidence.
III.
The defendant also challenges the length of sentencing. He argues that the ten-month sentence is excessive for an act that spanned no more than ten minutes and twelve miles. He reasons that no one was injured and no property was damaged.
This sentence is controlled by the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. § 40-35-117(b). When a challenge is made to the length, range, or manner of the service 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). The Sentencing Commission Comments provide that the burden is on the defendant to show the impropriety of a sentence.
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 statement 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, the court is required to provide the defendant with a reasonable opportunity to be heard as to the length and manner of the sentence. The sentence must be specific and consistent with the purposes of the Act. Tenn. Code Ann. § 40-35- 302(a), (b). A percentage of not greater than seventy-five percent of the sentence should be fixed for a service for a misdemeanor offender; however, a DUI offender may be required to serve the full one hundred percent of his sentence. Tenn. Code Ann. § 40-35-302(d); Palmer v. State, 902 S.W.2d 391, 393-94 (Tenn. 1995). 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. Tenn. Code Ann. § 40-35-302(d).
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 statutory scheme is designed to provide the trial court with continuing jurisdiction in the misdemeanor case 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).
For each conviction, t
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