 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Whaley5/21/2003
jury.
Obviously, the jury concluded that Officer Martin was the more credible witness, accrediting his version of events by returning a guilty verdict against the appellant. Granting the State the strongest legitimate view of the evidence, we conclude that the jury could have found that the appellant was in physical control of the vehicle. The proof clearly established that the appellant was sitting in the driver's seat behind the steering wheel, the vehicle was capable of being operated, and the appellant informed Officer Martin that she was driving. See Lawrence, 849 S.W.2d at 765; State v. Richard Lynn Batts, No. W2001-01602-CCA-R3-CD, 2002 WL 1482662, at *3 (Tenn. Crim. App. at Jackson, Feb. 28, 2002). Officer Martin repeatedly testified that the keys to the vehicle were in the ignition and the car was running. See State v. Johnny Wade Meeks, No. 03C01-9811-CR-00411, 1999 WL 1084230, at *3 (Tenn. Crim. App. at Knoxville, Dec. 3, 1999). In fact, Officer Martin maintained that "all she had to do was drop it in drive and hit the gas, she was gone." This court has observed that "in enacting the driving while intoxicated statute, the legislature desired not only to prohibit the operation of a vehicle by an intoxicated individual, but also to remove from the inebriated the option of operating a vehicle." State v. Turner, 953 S.W.2d 213, 216 (Tenn. Crim. App. 1996). Thus, there is sufficient proof to sustain the appellant's conviction for DUI.
B. Sentencing
Appellate review of the length, range or manner of service of a sentence is de novo. Tenn. Code Ann. § 40-35-401(d) (1997). In conducting its de novo review, this court considers the following factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on enhancement and mitigating factors; (6) any statement by the appellant in her own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102 and -103 (1997), -210 (Supp. 2002); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is on the appellant to demonstrate the impropriety of her sentences. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately considered sentencing principles and all relevant facts and circumstances, this court will accord the trial court's determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169. However, in sentencing the appellant for her misdemeanor convictions, the "trial court need only consider the principles of sentencing and enhancement and mitigating factors in order to comply with the legislative mandates of the misdemeanor sentencing statute." State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998).
DUI, first offense, is a Class A misdemeanor. See Tenn. Code Ann. § 55-10-403(a)(1) (1998); State v. Blackhurst, 70 S.W.3d 88, 91 (Tenn. Crim. App. 2001) (stating that DUI first offense is a Class A misdemeanor). Assault, as charged in the instant case, is a Class B misdemeanor. Tenn. Code Ann. § 39-13-101(a)(3) and (b) (1997). Generally, a misdemeanant is not entitled to a presumptive minimum sentence. See State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). However, an individual convicted of a Class B misdemeanor may receive a statutory maximum sentence of six months. See Tenn. Code Ann. § 40-35-111(e)(2) (1997). Moreover, Tennessee Code Annotated section 55-10-403(a)(1) provides that a person convicted of a first offense DUI, as in the insta
Page 1 2 3 4 5 6 7 Tennessee DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|