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State v. Ayers10/29/2001
ing supervision by the Department of Correction. Tenn. Code Ann. § 40-35-302(f). The statutory scheme is designed to provide the trial court with continuing jurisdiction in the misdemeanor case and a wide latitude of flexibility. 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). Appellate review of misdemeanor sentencing is de novo with a presumption of correctness. See State v. Troutman, 979 S.W.2d 271 (Tenn. 1998).
At the sentencing hearing, it was established that the defendant, who was 38 years of age, had prior convictions for vehicular homicide by means of intoxication in 1987 and driving under the influence and driving on a revoked license in 1991. The defendant received a nine- year sentence in the Department of Correction for the vehicular homicide and served a term in jail for the prior DUI offense.
The defendant resides with his parents and has custody of a three- year-old son jointly with his mother. The defendant occasionally resides with a girlfriend in Scott County during which time the defendant's mother retains custody of his son. The defendant is employed in construction, specializing in commercial metal framing and drywall. At the time of the sentencing hearing, he received $10.00 per hour in compensation. The defendant expressed remorse for having used alcohol before driving and indicated satisfaction with the jury despite his belief that he "wasn't at that point" of intoxication. The defendant described himself as an alcoholic and stated that he had participated in alcohol rehabilitation while in prison and, prior to that, received further treatment while in a community corrections program. While acknowledging that he had "not been there faithfully like should have," the defendant stated that he had attended a few Alcoholics Anonymous meetings.
In imposing sentence, the trial court placed particular emphasis on the defendant's prior convictions for vehicular homicide and, within four years thereafter, a first offense for driving under the influence . The trial court rejected the defendant's assertion that he was able to control his drinking.
The minimum possible sentence for second offense driving under the influence is 45 days. The record demonstrates that the trial court considered sentencing principles and guidelines in imposing the sentence. Certainly, a previous history of criminal convictions is a basis to enhance the sentence. See Tenn. Code Ann. § 40-35-114(1). The seriousness of the offenses and their similarity to the current offense are a proper basis for concern. As our supreme court ruled in State v. Troutman, "society demands protection from those who habitually drink and drive in complete disregard for the welfare of others and for the laws of this state." 979 S.W.2d at 274. In our view, the trial court imposed an appropriate sentence.
Accordingly, the judgment is affirmed.
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