 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Butler6/24/2003
ned serious bodily injury." Tenn. Code Ann. § 40-35-113(1) (1997). However, in weighing the mitigating factor the trial court stated: "I don't tend to give [the mitigating factor] a lot of weight because of the fact that we're talking about a [fourth driving under the influence conviction]." The defendant claims that the trial court's sentence of four years was excessive because it failed to give the proper weight to this factor. We disagree.
In addition to the one mitigating factor, the trial court also considered two enhancement factors in determining the defendant's sentence: 1) the defendant had a prior history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range, and 2) the defendant had a previous history of unwillingness to comply with the conditions of a sentence involving release in the community. See Tenn. Code Ann. § 40-35-114(1), (8) (1997). In weighing these factors, the trial court concluded that a four-year Range II sentence was proper. We have previously observed that if a trial court weighs one or more factors more heavily than the defendant thinks is appropriate, "the [trial] court's decision to do so is proper given the discretion allowed a trial court in considering enhancement factors." State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996) (citing State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986)).
Additionally, the defendant argues that the $10,000 fine imposed by the trial court is excessive. Although the trial court reduced the fine assessed by the jury, in an effort to underscore the severity of the defendant's fourth driving under the influence conviction, the trial court conditioned the defendant's ability to regain his license in the future upon payment of the $10,000 fine and court costs. Though the defendant's ability to pay the fine is a factor in the establishment of the fine, see Tennessee Code Annotated section 40-35-207(a)(7) (1997), it is not a controlling factor. Given the severity of the offense committed by the defendant and his criminal history, we find no error or abuse of discretion in either the imposed prison sentence or the fine. Thus, we hold that the defendant was properly sentenced.
Finally, the defendant contends that the trial court erroneously considered a 1990 conviction for driving under the influence in contravention of the ten-year rule established in Tennessee Code Annotated section 55-10-403(a)(3) (1997 & Supp. 2002). Because the defendant failed to raise this issue in his motion for a new trial and because the defendant failed to present the issue to the Court of Criminal Appeals, as required by Tennessee Rule of Appellate Procedure 3(e), we hold that the issue is not properly before our Court and is waived.
CONCLUSION
In sum, the evidence was sufficient to support the defendant's convictions for driving under the influence . We also hold that in a case where the defendant contests the element of physical control under the driving under the influence statute, based upon alleged inoperability of the defendant's vehicle, the trier of fact will apply the reasonably capable of being rendered operable standard in evaluating the fifth Lawrence factor. Finally, we hold that the defendant's sentence and fine are proper. Accordingly, the decision of the Court of Criminal Appeals is affirmed.
Because it appears to the Court that the defendant, Rodney M. Butler, is indigent, costs of the appeal will be paid by the State of Tennessee.
Adolpho A. Birch, Jr., J., concurring and dissenting.
Although I agree with the law applicable to this case, I cannot agree with the majority's application of that law to t
Page 1 2 3 4 5 6 7 8 9 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|