# FILED May 4, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE MARCH SESSION , 1999 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9710- CC-00464 ) Appellee, ) ) ) MONTGOM ERY COUNTY VS. ) ) HON . JOHN H. GAS AWAY III, STEVE A. BAGGETT, ) JUDGE ) Appe llant. ) (Misdemeanor Sentenci ng)

ON APPEAL FROM THE JUDGMENT OF THE CRIMIN AL COURT OF MONTGOMERY COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : PETER M. OLSON JOHN KNOX WALKUP 114 Franklin Street Attorney Generaland Reporter Clarksvi lle, TN 37040 CLINTON J. MORGAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 JOHN CARNEY Distri ct Attorney General WILLIAM CL OUD Assistant Distri ct Attorney General 204 Franklin Street, Suite 200 Clarksvi lle, TN 37040
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE1 At the time appellate briefs were submitted, the sentencing heari ng in this case had notyet been tr

anscribed. Defendant mo v ed this Court for the right to supplement his brief following access to the transcript, and he expressed his intention to raise a dditional issues. This Court granted Defendant’s motion and informed him upon receip t of the sentencing hearing trans

cript. The Court receive d no supplementation by Defendant. -2- 

# OPINION

The Defendant , Ste ve A. Bagg ett, appeals his se ntence of ten d ays incarcerat ion fo llowed by six months probati on for reckless dri ving, a class B misdem eanor. Defen d ant entered a plea of guil ty to one count of reckl ess d rivi ng, with the l ength and manner of ser vice of t he sentence lef t to the discreti on of the trial cour t. At that time , th e State dis misse d one count of DUI and one count of refusal to submit to alcohol testi ng. Following a se ntenci ng hearin g, the t rial cou rt sente nced Defe ndan t to ten d ays inc arcera tion an d six months of probation. From this order, Defendant timely appeals. 1

Defendant first

contends that

the tri al court err

ed by fail ing to requi re and consider

a prese ntence report. Pre sentence report s are not mandatory for misdemeanor sentencing. Tenn. Code Ann. § 40-35-205(a) (“Upon acceptance of a guil ty plea . . . the court shall , in the case ofa felony, and may, in t he case of a misdemeanor, direct the presentence service offi cer to make a presentence investi gation and report . . . .”). At t he se ntencing hear ing, Defendant was afforded “the op portu nity to be heard and present evidence rel evant to t he sentencing” in accordance wi th Te nnes see C ode A nnota ted § 4 0-35- 209(b ). This issue lac ks me rit.-3- Defendant next argues (1) that he is enti tled to t he presumptive mi nimum sentence allowe d by law; and (2) that because t he offense of reckless driving has
no minim um s enten ce pre scribe d by the legisla ture, t he trial court should have permitted his enti re s entenc e to be served on probat ion, wit h no incarcer ation. We disagree , and we affirm the s entenc e ordere d by the trial c ourt.

Defen dant, a misdemeanant, is no t en titl ed to the pres umptive minimum sentence. State v. Baker , 966 S.W.2d 429, 434 (Tenn. Cri m. App. 1997); State
v. Combs , 945 S.W.2d 770 , 774 (Tenn . Crim. A pp. 199 6); State v. Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. A pp. 199 5); State v. Seaton , 914 S.W.2d 129, 133 (Tenn. Crim. A pp. 199 5); State v . Wil li ams , 9 14 S.W.2d 9 40, 949 (Ten n. C ri m. App. 19 95); State v. Creasy , 885 S.W .2d 829, 832 (Tenn. Crim . App. 1994 ).

In misdemeanor sentencing , the tri al court r etainsthe authority to pl ace the defendanton probation either i mmediately or af ter a ti me of periodi c or continuousconfinement. Tenn. Code Ann. § 40-35-302(e). Misdemeanor sentencing i s designed to pr ovide the t rial cour

t with con tinuingjurisdi ction and
a greatdealof f lex ibi li ty . Fu rt her more , ou r su pre me court recent ly stated in State
v. Troutman , 979 S.W.2d 271 (Tenn. 1998), that the t rial court’s findings on the issue of i ncarcerati on need not appear i n the record: [W ]hile the better p ractice is to m ake findi ngs on the recor d when fixi ng a percentage o f a de fenda nt’s se ntenc e to be served in incarcerat ion, a trial court need on ly c onsider the principl es of sentencing and enhancemen t and m itigating facto rs in order to com ply with the legisl ative mandates of t he misdemeanor sentencing statute. Id. at 274.2 Defendant offered two witnes ses whotestified (1) that they did notbelieve Defendant wasintoxicated at the time of the offense, and (2) that they considered his actionsof reckless driving to be justified due to passion. -4- Our review of the sentenci ng hearing transcript reveals th at Defendant was previo usly convicted of possession of cocaine for

resale. No relevant mi tigati on was offered b y Defen dant. 2 The prior felony drug conv iction supports a sentence which includes i ncarcerati on. Therefore, we find no rev ersible e rror i n the senten ce ma ndated by the trial co urt.

Defe ndan t’s sentence o f ten days incarc eration f ollowed by six months probation f

or the offense of reckl ess drivi ng is aff irmed.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ JOE G. RILE Y, J UDGE

___________________________________ JOHN EVER ETT WILLI AMS, J UDGE