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State v. Johnson9/24/1999
ncing. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). One convicted of a misdemeanor, unlike one convicted of a felony, is not entitled to a presumption of a minimum sentence. State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997); State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994).
A. Length of Sentences
Class A misdemeanors carry a maximum sentence of eleven months and twenty-nine days. Tenn. Code Ann. § 40-35-111(e)(1). In each case, the trial court set determinate sentences below the statutory maximum. It enhanced the length of each sentence due to defendant's history of criminal convictions. See Tenn. Code Ann. § 40-35-114(1). The court also considered defendant's previous unwillingness to comply with the conditions of release into the community in that he failed to report to serve the prescribed jail time in a Rutherford County DUI. See Tenn. Code Ann. § 40-35-114(8).
These are proper considerations by the trial court in setting misdemeanor sentences. The length of the sentences imposed is proper.
B. Consecutive Sentencing
With regard to the consecutive nature of these sentences, a court may order sentences to run consecutively if the court finds by a preponderance of the evidence that the defendant is a dangerous offender whose behavior indicates little or no regard for human life, and no hesitation about committing a crime where the risk to human life is high. Tenn. Code Ann. § 40-35-115(b)(4). The trial court properly declared defendant to be a dangerous offender noting that the DUI was a crime involving great risk to human life. In this case the defendant was driving with a "toxic" blood alcohol level and wrecked the vehicle.
Finally, the court is required to determine whether the consecutive sentences (1) are reasonably related to the severity of the offenses committed; and (2) serve to protect the public from further criminal conduct by the offender. State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). Although the trial court did not recite these factors, we find through our de novo review that the sentences comport with the Wilkerson requirements.
Imposition of consecutive sentencing in this case was proper.
C. DUI Sentence
The trial court sentenced defendant to nine months and fifteen days at 100% for the DUI offense. Tenn. Code Ann. § 55-10-403(c) provides that DUI offenders be "required to serve the difference between the time actually served and the maximum sentence on probation." A panel of this court in State v. Combs, 945 S.W.2d 770 (Tenn. Crim. App. 1996), concluded that this statute "in effect, mandates a maximum sentence for DUI, with the only function of the trial court being to determine what period above the minimum period of incarceration established by statute, if any, is to be suspended." Id. at 774 (emphasis added).
Thus, we conclude that the sentence imposed in this case for the DUI conviction must be for eleven months and twenty-nine days with nine months and fifteen days confinement followed by probation for the balance of the sentence.
CONCLUSION
Based upon the foregoing, we AFFIRM AS MODIFIED the judgment of the trial court.
JOE G. RILEY, JUDGE
CONCUR: DAVID G. HAYES, JUDGE L.T. LAFFERTY, SENIOR JUDGE
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