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State v. Maupin6/18/1999
(3) the principles of sentencing and the arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant in his or her own behalf; and (7) the defendant's potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and -210. State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
In misdemeanor sentencing, a separate sentencing hearing is not mandatory but the court is required to provide the defendant with a reasonable opportunity to be heard as to the length and manner of the sentence. Tenn. Code Ann. § 40-35-302(a). Misdemeanor sentences must be specific and in accordance with the principles, purposes, and goals of the Criminal Sentencing Reform Act of 1989. Tenn. Code Ann. §§ 40- 35-104, -117, and -302; State v. Palmer, 902 S.W.2d 391, 393 (Tenn. 1995). See State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998). The misdemeanor offender must be sentenced to an authorized determinant sentence with a percentage of that sentence designated for eligibility for rehabilitative programs. Generally, a percentage of not greater than 75% of the sentence should be fixed for a misdemeanor offender; however, a DUI offender may be required to serve the full 100% of his sentence. Palmer, 902 S.W.2d at 393-94. In determining the percentage of the sentence, the court must consider enhancement and mitigating factors as well as the legislative purposes and principles related to sentencing. Id.
Upon service of that percentage, the administrative agency governing the rehabilitative programs determines which among the lawful programs available is appropriate. The trial court retains the authority to place the defendant on probation either immediately or after a term of periodic or continuous confinement. Tenn. Code Ann. § 40-35-302(e). The legislature has encouraged courts to consider public or private agencies for probation supervision prior to directing supervision by the Department of Correction. Tenn. Code Ann. § 40-35- 302(f). The governing statute is designed to provide the trial court with continuing jurisdiction in misdemeanor cases 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).
The defendant argues that because there was no proof that she had actually stolen the prescription in the first instance, the trial court should not have concluded that the offense was committed to gratify the defendant's desire for pleasure or excitement. Tenn. Code Ann. § 40-35-114(7). The defendant complains that the state has failed to meet its burden of proof under State v. Adams, 864 S.W.2d 31 (Tenn. 1993).
Even if the application of that single enhancement factor constituted error, however, it is our view that the prior criminal conduct of the defendant would, standing alone, warrant the imposition of the maximum term. Moreover, there was ample proof that the Gatlins were particularly vulnerable due to their age and physical condition. Because of the defendant's history of drug abuse and the failure of less restrictive measures to achieve rehabilitation, the sentence of incarceration is not, in our view, excessive.
Accordingly, the judgment is affirmed.
Gary R. Wade, Presiding Judge
CONCUR:
Joseph M. Tipton, Judge
Thomas T. Woodall, Judge
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