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State v. Reece2/17/1999
Dec. 3, 1996). Thus, the trial court's imposition of a sentence of eleven months, twenty-nine days is mandated by our legislature and is not improper.
The sentencing court must also determine the percentage of the sentence which the defendant shall serve. 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. In determining the percentage of the sentence, the trial court must consider enhancement and mitigating factors as well as the legislative purposes and principles related to sentencing. See Troutman, 979 S.W.2d at 273-74; State v. Warren, No. 01C01-0905-CC-00218 (Tenn. Crim. App. at Nashville, May 21, 1997) (citing Tenn. Code Ann. § 40-35-302(d); State v. Palmer, 902 S.W.2d 391, 393-94 (Tenn. 1995)). In observance of the less stringent procedures attached to misdemeanor sentencing, upon de novo review, we cannot conclude that the trial court's grant of release eligibility following a period of forty-eight hours consdifinmenement was arbitrarily imposed. See Troutman, 979 S.W.2d at 274.
Finally, 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 statutory scheme is designed to provide the trial court with continuing jurisdiction in the misdemeanor case and a wide latitude of flexibility. Additionally, we observe that 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). Thus, we are confronted with the propriety of a sentence of eighty-six days confinement.
In the present case, it is clear from the record that the trial court considered the death of Carey Calhoun in imposing the appellant's sentence. It is also clear from the record that the appellant's intoxication was not the proximate cause of the accident, and, thus, the victim's death could not be considered as an enhancement factor. See Brice, No. 03C01-9605-CC-00189; State v. Andrews, No. 02C01-9201-CC-00024 (Tenn. Crim. App. at Jackson, Jan. 20, 1993). Accordingly, it was error for the court to consider Calhoun's death in imposing sentence.
Notwithstanding the trial court's error in considering the victim's death, the record supports the trial court's concerns of the appellant's lack of candor regarding his level of intoxication. Additionally, the record reflects the appellant's awareness of his impaired state at the time he elected to drive under the influence and the appellant's disregard of the safety of Tabitha Turner, the passenger in his vehicle. The trial court imposed a sentence of confinement of eighty-six days when it could have extended confinement to eleven months, twenty-nine days, as there is no presumptive minimum sentence in misdemeanor sentencing. Although the appellant has an admirable employment history and no prior criminal history, we cannot conclude that the sentence imposed by the trial court was improper. Accordingly, the sentence imposed by the trial court is affirmed.
DAVID G. HAYES, Judge
CONCUR: JERRY L. SMITH, Judge JAMES CURWOOD WITT, JR., Judge
Page 1 2 3 Tennessee DUI Attorneys
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