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State v. Ross2/3/1999
entencing determination of the trial court is correct. See Tenn. Code Ann. § 40-35-401(d) (1997). Moreover, the appellant bears the burden of establishing that the sentence imposed by the trial court is improper. Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401(d).
The misdemeanor offender must be sentenced to an authorized determinant sentence with a percentage of that sentence designated for eligibility for rehabilitative programs. See State v. Hailey, No. 02C01-9705-CR-00198 (Tenn. Crim. App. at Jackson, May 14, 1998); see also Tenn. Code Ann. § 40-35-302 (1997). Notwithstanding this limitation, the court can grant probation immediately or after a period of split or continuous confinement. See Tenn. Code Ann. § 40-35-302(e). The governing statute is designed to provide the trial court with continuing jurisdiction in misdemeanor cases and a wide latitude of flexibility. See Troutman, 979 S.W.2d at 273.
In determining the appropriate term of confinement, the trial court should consider 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), and that the burenburden of establishing suitability for probation rests with the defendant. Tenn. Code Ann. § 40-35-303(b). With these considerations, the trial court should examine nhancement and mitigating factors as well as the legislative purposes and principles related to sentencing. See State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998); State v. Warren, No. 01C01-0905-CC-00218 (Tenn. Crim. App. at Nashville, May 21, 1997) (citing Tenn. Code Ann. § 40-35-302(d); Palmer, 902 S.W.2d at 393-94). However, the statutory enhancement and mitigating factors do not have to be the only factors considered by the trial court in determining the appropriate sentence. The trial court should examine the misdemeanor offense in the light and character of the circumstances of the offense as well as under the mandated sentencing principles. State v. Brannon, No. 03C01-9508-CR-00233 (Tenn. Crim. App. at Knoxville, Apr. 3, 1996), perm. to appeal denied, (Tenn. Nov. 4, 1996)).
In the present case, the appellant was convicted of a class A misdemeanor. The penalty for a Class A misdemeanor is a term of imprisonment "not greater than eleven months, twenty nine days." See Tenn. Code Ann. § 40-35-111(e)(1). In sentencing the appellant, the trial court relied heavily upon the seriousness of the appellant's prior convictions for driving under the influence . The fact that the appellant occasionally attended church, was a good employee , and provided for his family do not outweigh the appellant's prior criminal history and obvious failed attempts at rehabilitation. Certainly, the trial court's imposition of a sentence of one hundred and twenty fdays confinement was consistent with the principles, purposes and goals of the Sentencing Act and was not an abuse of the court's discretion. The appellant's challenge is without merit.
The judgment of the trial court is affirmed.
DAVID G. HAYES, Judge
CONCUR:
JOE G. RILEY, Judge
JOHN EVERETT WILLIAMS, Judge
Page 1 2 Tennessee DUI Attorneys
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