# FILED August 5, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINAL A PPEALS OF TENN ESSEE AT NASHVILLE JULY 1998 SESSION STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C

01-9708-CC-00373 Appellee, ) ) GILES COUNTY VS. ) (Nos. 810 6, 81 07, 8 108 Below) ) WAYNE COLEMAN BOONE, ) The Hon. Robert L. Jones ) Appellant. ) (Sentencing)

FOR THE APPELLANT : FOR THE APPELLEE : SHARA A. FLACY JOHN KNOX WALKUP Public Defender Attorney General and Repor ter 22nd Judicial District 128 North Second Street GEORGIA BLYTHE FELNER P.O. Box 1208 Assistant Attorney Gener al Pulaski, TN 38478 Cordell Hull Buildi ng, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493 T. MICHAEL BOTTOMS District Attorney General 22nd Judicial District P.O. Box 459 Lawrenceburg, TN 38464

OPINION FILED _______________________
AFFIRMED PURSUANT TO R ULE 20 JERRY L. SMITH, JUDGE

### -1- O P I N IO N The appellant, W ayne Colem an Boone, p led guiltyto one co unt of driving underthe infl uence of an intoxi cant (DUI) , thir d offense, one count of si mple possession of marijuana, and two counts of drivi ng on a revoked license. After a sentencing heari ng, the appellan t recei ved an effect ive senten ce of six months i n jail , foll owed by 11 months and 29 days on super

vise d probation. He was orde red to pay a f ine of $ 1100 on t he DUI convicti on a nd a fi ne of $250 on th e simple possessi on of marijua na convict ion. The appellant

was ordered to serve 12 0 days before he would be eligible for work release, and his drive r’s li cense was revoked for three y ears. In this appealas of rig ht, the ap pellant contends that hi s sentence is excessive. Specifica lly , the appel lant contends that t he trial court s hould have sentenc ed him to the statutory minim um of 12 0 days in jail, see T.C.A. § 55-10-403(a)(1), and that the tri al court

should have r

emitted the mandato ry fi nes based on his indi gency. Thestate, i n a cross-appea l, conte nds that the trialcourt err ed by fai ling to revoke t he appella nt’s driving privileges.

Based on our r

eview of

the br iefs an d the ent ire r ecord i n this

cause, we conclude that thi s is an appr opriate case for affi rmance under Rule 2 0, Tenness e e Court of CriminalAppeals Rules
.

When an ap peal cha llenges the lengt h, range, or manner of servi ce of a sentence, this Cour

t conducts a de

novo review wi th a presumpti on that th e determinati on of the tri al court

was correct. T.C.A. § 40- 35-401( d). However, thi s presumption of correctness

is " cond it ioned upon the affirmative sho wing that the trial court in the record consideredthe sen tencin g prin cipl es and all relevant facts and circum stances." State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991) . In the event that the record fails to dem onstrate such consid eration , revie w of the sentenc e is purely de novo. Id . If appel late review reflects that the

trialcourt pro perly

considered all r

elevant factors and its findi ngs of fact are adeq uately supported by the rec ord, this Court m ust affirm the sentence
. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Cri m. App. 1991). I n conducting a review, this Cour t must consider

the evid ence, the pr

esentence repor

t, thesentencing princ iples, the argum ents of coun sel, the natur

e and character

of the offens e, mitigat ing and enhancement factors, any

### -2-

stateme nts made b y the defendant, and the potential for rehabilitation or treatm ent. State
v. Holland , 860 S.W.2d 53, 60 (Tenn. C rim. App. 199 3). The defendant bea rs the bur den of showing the im propriety of the sentenc e impose d. State v. Gr eg ory , 862 S .W.2d 574, 578 (Tenn. C rim. App. 199 3).

A misde meana nt is not entitled to the presumption of a minimum sentence. State v. Creasy , 885 S.W .2d 829 (Tenn . Crim. App. 19 94). Furt her , mi sdemeanor sentences do not

contain r

anges of punish ments, and a misdemeanordefendant may be sentenced to the maximum term provi ded for the offense as long as t he sentence imposed is consistent with the purposes of the sentencing act. State v. Pal mer , 902 S.W.2d 391, 393 (Tenn. 1995) . Our stat utory system pertain ing to misdemeanor se ntencing i s designed to prov ide trial courts with continuing jurisdiction an d a great deal of flexibility. S tate v
. Boyd , 925 S.W .2d 237, 244 (T enn. Crim. A pp. 1995).

In the pre sent c ase, th e trial cour t held a sep arate sentencing heari ng for which a pre-sentence report was ordered. The appella nt’s cri minal recor d consists of

three public intoxica tion co nviction s in 199 0-199 1 and th ree DU I convic tions in 1994-1996. The appe ll ant was also con victed of rape in 1976 , however, the trial court foun d th at th e convicti on was too old to be relevant for sentenci ng purposes. In determini ng the sentence , the trialcourt consi dered the appe llant’ s previous criminalhistory

and the fact

that al l pri or relevant offenses inv

olved the use of alcohol . It al so consideredthat the appellant had been given a break

on the three prior DUI c onvictions in that he wa s allowed to plead gu ilty to a first offense in eac h instance. As miti gating ci rcumstances, the trialcourt noted that th e appellant

had voluntarily

and successfull y completed analcohol t reatment progr am in May 1997. The trialcourt fur ther consi dered as posi tive fac tors that the app ellant w as gain fully employed and had a support ive fa mily. Based on ou r revi ew, we find tha t the appel lant has not overcom e the presum ption that the senten ces impo sed by the trial court are correct.

The appellant

al s o argues that

the tri al court

erred by

faili ng to remit the manda tory fines becaus e he is indigent. See T.C.A. § 55- 10-403(b)( 2) and T.C. A. § 39-17- 428(d)(1). The decisionof whether to grant a wai ver of mandatory fines based ona findi ng

### -3-

of indigen cy rests within th e trial cou rt’s disc retion, a nd tha t decis ion can not be revers ed in the absence of evi dence in therecord whi ch indicates an abuse of th at discr etion whi ch has done great injustice an d injuryto the party comp laining. State v. Bl ack , 897 S.W.2d 680, 684 (Tenn. 1995). W hile the trial court found the app ellant t o be indigent in thi s case for purposes of appointing cou nsel, i t also found that the a ppellant could pay $25 a week to partially reimburse th e state’ s expense in d oing so. The pre- sentence repor t shows that

the appellant

will be responsible for m e dical bi lls if not covered by insurance , however, there was also proof

that the appellant

is gainf ully

employed and t hat his employe r would al low him to return to work after a pe riod of incarceration, i ncludin g a commitment to provi de transportation if the ap pellant is given work rel ease. Based on therecord, we cannot find that the t rial court abused its discretion i n declini ng to remit the mandatory fi nes.

Finall y, the stateargues that the trialcourt err

ed by fai ling to re voke th e appe llant’s driving privilege upon his conviction for DUI, third offense. See T.C.A. § 55- 10- 403(a)(1). Beca use th e judgm ent cle arly state s as a s pecial c onditio n that th e appe llant’s license is revoked fo r a period of three years, this issue is moot.

Acc ordin gly, based upon a read ing of the entire record, t he briefs of the parties, and the applica ble law, this Court f inds th at the ju dgm ent of th e trial cou rt shou ld be affi rmed pu rsuant to Rule 20, T ennessee Court of Crim inal Appeals Rules
. IT IS , THEREFORE, ORDERED that the judgment of the trial c ourt is a ffirm ed pur suan t to Rule 20.

_______________________ _________ JERRY L . SMI TH, JU DGE CONCUR:

_______________________ _________ PAUL G. SUMMERS, JUDGE

_______________________ _________ DAVID G. HAYES, JUDGE