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State v. Bartlett4/9/1998
he trial court applied principles of the 1989 Act, including enhancing or mitigating factors. For the DUI conviction, which has a minimum sentence of forty-eight hours and a maximum sentence of eleven months and twenty-nine days, the trial court imposed a ten-month sentence. The court found no mitigating factors and applied the following enhancing factors to arrive at the sentence:
(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;
(8) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release in the community; and,
(13) The felony was committed while on any of the following forms of release status if such release is from a prior felony conviction: ... (C) Probation[.]
Tenn. Code Ann. § 40-35-114(1), (8), (13)(C) (Supp. 1993). The trial court properly applied factor (1); the defendant has a history of criminal behavior and convictions including theft, aggravated assault, aggravated burglary and larceny, among others. The defendant also has a history of probation violations, thus application of (8) was also proper. Because, however, (13)(C) does not apply to misdemeanors, that enhancement factor was misapplied. Nonetheless, the significant weight attached to the two applicable enhancement factors would warrant the ten-month sentence.
The trial court imposed a four-month-fifteen-day sentence for the conviction of driving on a revoked license. The single mitigating factor was that no serious bodily injury was threatened or caused by the defendant's committing this offense. The same three enhancing factors for the DUI offense were applied to this offense. The application of (1) and (8) were proper, but (13)(C) was improper. In our view, the sentence should remain the same.
Reckless driving, a Class B misdemeanor, may include a sentence of not more than six months. The trial court sentenced the defendant to five months. The trial court again properly applied enhancements (1) and (8), and improperly attached (13)(C). In addition, the trial court identified the following as enhancement factors:
(2) The defendant was a leader in the commission of an offense involving two (2) or more criminal actors;
(3) The offense involved more than one (1) victim; and
(7) The offense involved a victim and was committed to gratify the defendant's desire for pleasure or excitement[.]
Tenn. Code Ann. § 40-35-114 (Supp. 1993). Because the defendant was the sole driver and the only person charged with an offense, the state agrees that (2) was improperly applied. The application of (3) was also improper in that the defendant caused no injuries or property damage. See State v. Raines, 882 S.W.2d 376 (Tenn. Crim. App. 1994). Because there was no victim in this case, enhancement factor (7) was not applicable. Nonetheless, the defendant drove through five intersections at high rates of speed while intoxicated and without a valid driver's license. The applicable enhancement factors, in our view, are entitled to significant weight. The defendant did not receive the maximum term. Thus, we find the reckless driving sentence of five months appropriate.
Evading arrest is a Class A misdemeanor and may include a sentence of not more than eleven months and twenty-nine days. The trial court imposed a ten-month sentence and applied factors (1), (2), (7), (8), and (13)(C), as previously set forth in this opinion, and one additional factor: "(9) The defendant possessed or employed a firearm, explosive device or other deadly weapon during the commission of th
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