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State v. Jackson10/14/2005
court can order incarceration based solely on deterrence. Id., at 3, 9. and 13. If the trial court on remand finds that a sentence of incarceration is appropriate based solely on a need for deterrence, the trial court should consider the following factors:
1) Whether other incidents of the charged offense are increasingly present in the community, jurisdiction, or in the state as a whole.
2) Whether the defendant's crime was the result of intentional, knowing, or reckless conduct or was otherwise motivated by a desire to profit or gain from the criminal behavior.
3) Whether the defendant's crime and conviction have received substantial publicity beyond that normally expected in the typical case.
4) Whether the defendant was a member of a criminal enterprise, or substantially encouraged or assisted others in achieving the criminal objective.
5) Whether the defendant has previously engaged in criminal conduct of the same type as the offense in question, irrespective of whether such conduct results in previous arrests or convictions.
Id, at 10-12.
We also note that the trial court considered in its sentencing determinations "what the jury found in the case to be false testimony under oath." It is clear by its verdict that the jury resolved any conflicts between Officer Taylor's testimony and Defendant's testimony in favor of the State. The jury, however, did not make a finding that Defendant committed perjury during her testimony at trial. Thus, there is nothing in the record to support the trial court's assumption that the jury found that Defendant "gave false testimony under oath," and consideration of this factor was inappropriate.
CONCLUSION
After a careful review of the record, we affirm Defendant's conviction for DUI. We reverse Defendant's conviction for violation of the motor carrier safety rules and regulations, and dismiss that charge. We reverse Defendant's sentence for her DUI conviction, and remand for a new sentencing hearing consistent with this opinion.
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