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State v. Adams3/31/2000
stated that the officer called the Department of Safety and obtained that address. She admitted that as of January 1, 1999, she was living in Franklin, Tennessee. The defendant denied that she was trying to hide her address from anyone. As to the forgery charges, the defendant testified that she was living in an apartment complex when a neighbor gave her a check. The neighbor asked the defendant to cash the check, which she did, although she knew it was a forgery. The defendant testified that the three other checks were cashed by the neighbor, which the defendant knew were forgeries as well. It was stipulated by the State and the defendant that the trial court can consider the four (4) arrest warrants issued for the defendant by the Clerk of Sumner County on March 8, 1998, for the offenses of forgery. These offenses were retired upon payment of restitution. Also, the trial court was to consider a judgment of conviction for the defendant on March 11, 1999, for the offense of DUI, second offense. She received a fine of six hundred dollars ($600.00), and confinement for eleven (11) months and twenty-nine (29) days, with the defendant to serve ninety (90) days, and the balance of the sentence on probation for eleven (11) months and twenty-nine (29) days by the Davidson County Criminal Court. The defendant was given twenty-one (21) days credit. Further, the trial court was to consider a judgment of the Davidson County Probate Court for a conviction of DUI, first offense, by the defendant on October 11, 1993. The defendant was sentenced to a fine of two hundred fifty dollars ($250.00) and eleven (11) months and twenty- nine (29) days confinement, with eleven (11) months and twenty-nine (29) days of supervised probation.
LEGAL ANALYSIS
The defendant asserts that the evidence at the sentencing hearing was insufficient to support a judgment of six (6) months in incarceration. Further, the defendant contends that the trial court erred in not finding mitigating factor (1), Tennessee Code Annotated § 40-35-113, to wit: the defendant's criminal conduct neither caused nor threatened serious bodily injury. The State counters that the record reflects that the trial court properly considered all applicable sentencing factors correctly in imposing the sentence.
When a defendant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. Tenn. Code Ann. § 40-35- 401(d) (1997). The burden of showing that the sentence is improper is upon the appealing party. Tenn. Code Ann. § 40-35-401 Sentencing Commission Comments at 590. This presumption, however, "is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles on all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, at the sentencing hearing; (b) the pre-sentence report, if any; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made in her own behalf; and (g) the potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-103, -210(b) (1997 & Supp. 1998).
In determining a proper misdemeanor sentence, 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 statute. Tenn. Code Ann. § 40-35-302(d); State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998); State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim.
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