FILED

August 5, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY 1998 SESSION

STATE OF TENNESSEE, )

) C.C.A. NO. 01C01-9708-CC-00373

Appellee, )

) GILES COUNTY

VS. ) (Nos. 8106, 8107, 8108 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 Reporter

22nd Judicial District

128 North Second Street GEORGIA BLYTHE FELNER

P.O. Box 1208 Assistant Attorney General

Pulaski, TN 38478 Cordell Hull Building, 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 RULE 20

JERRY L. SMITH, JUDGE
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O P I N I O N

The appellant, W ayne Coleman Boone, pled guilty to one count of driving

under the influence of an intoxicant (DUI), third offense, one count of simple possession of

marijuana, and two counts of driving on a revoked license. After a sentencing hearing, the

appellant received an effective sentence of six months in jail, followed by 11 months and

29 days on supervised probation. He was ordered to pay a fine of $1100 on the DUI

conviction and a fine of $250 on the simple possession of marijuana conviction. The

appellant was ordered to serve 120 days before he would be eligible for work release, and

his driver’s license was revoked for three years. In this appeal as of right, the appellant

contends that his sentence is excessive. Specifically, the appellant contends that the trial

court should have sentenced him to the statutory minimum of 120 days in jail, see T.C.A.

§ 55-10-403(a)(1), and that the trial court should have remitted the mandatory fines based

on his indigency. The state, in a cross-appeal, contends that the trial court erred by failing

to revoke the appellant’s driving privileges.

Based on our review of the briefs and the entire record in this cause, we

conclude that this is an appropriate case for affirmance under Rule 20, Tennessee Court

of Criminal Appeals Rules.

When an appeal challenges the length, range, or manner of service of a

sentence, this Court conducts a de novo review with a presumption that the determination

of the trial court was correct. T.C.A. § 40-35-401(d). However, this presumption of

correctness is "conditioned upon the affirmative showing that the trial court in the record

considered the sentencing principles and all relevant facts and circumstances." State v.

Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In the event that the record fails to dem onstrate

such consideration, review of the sentence is purely de novo. Id. If appellate review

reflects that the trial court properly considered all relevant factors and its findings of fact are

adequately supported by the record, this Court must affirm the sentence. State v. Fletcher,

805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). In conducting a review, this Court must

consider the evidence, the presentence report, the sentencing principles, the arguments of

counsel, the nature and character of the offense, mitigating and enhancement factors, any
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statements made by the defendant, and the potential for rehabilitation or treatment. State

v. Holland, 860 S.W.2d 53, 60 (Tenn. Crim. App. 1993). The defendant bears the burden

of showing the im propriety of the sentence imposed. State v. Gregory, 862 S.W.2d 574,

578 (Tenn. Crim. App. 1993).

A misdemeanant is not entitled to the presumption of a minimum sentence.

State v. Creasy, 885 S.W .2d 829 (Tenn. Crim. App. 1994). Further, misdemeanor

sentences do not contain ranges of punishments, and a misdemeanor defendant may be

sentenced to the maximum term provided for the offense as long as the sentence imposed

is consistent with the purposes of the sentencing act. State v. Palmer, 902 S.W.2d 391,

393 (Tenn. 1995). Our statutory system pertaining to misdemeanor sentencing is designed

to provide trial courts with continuing jurisdiction and a great deal of flexibility. State v.

Boyd, 925 S.W .2d 237, 244 (Tenn. Crim. App. 1995).

In the present case, the trial court held a separate sentencing hearing for

which a pre-sentence report was ordered. The appellant’s criminal record consists of three

public intoxication convictions in 1990-1991 and three DUI convic tions in 1994-1996. The

appellant was also convicted of rape in 1976, however, the trial court found that the

conviction was too old to be relevant for sentencing purposes. In determining the sentence,

the trial court considered the appellant’s previous criminal history and the fact that all prior

relevant offenses involved the use of alcohol. It also considered that the appellant had been

given a break on the three prior DUI convictions in that he was allowed to plead guilty to a

first offense in each instance. As mitigating circumstances, the trial court noted that the

appellant had voluntarily and successfully completed an alcohol treatment program in May

1997. The trial court further considered as positive factors that the appellant was gainfully

employed and had a supportive family. Based on our review, we find that the appellant has

not overcom e the presum ption that the sentences imposed by the trial court are correct.

The appellant also argues that the trial court erred by failing to remit the

mandatory fines because he is indigent. See T.C.A. § 55-10-403(b)(2) and T.C.A. § 39-17-

428(d)(1). The decision of whether to grant a waiver of mandatory fines based on a finding
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of indigency rests within the trial court’s discretion, and that decision cannot be reversed in

the absence of evidence in the record which indicates an abuse of that discretion which has

done great injustice and injury to the party complaining. State v. Black, 897 S.W.2d 680,

684 (Tenn. 1995). W hile the trial court found the appellant to be indigent in this case for

purposes of appointing counsel, it also found that the appellant could pay $25 a week to

partially reimburse the state’s expense in doing so. The pre-sentence report shows that the

appellant will be responsible for m edical bills if not covered by insurance, however, there

was also proof that the appellant is gainfully employed and that his employer would allow

him to return to work after a period of incarceration, includin g a commitment to provide

transportation if the appellant is given work release. Based on the record, we cannot find

that the trial court abused its discretion in declining to remit the mandatory fines.

 Finally, the state argues that the trial court erred by failing to revoke the

appellant’s driving privilege upon his conviction for DUI, third offense. See T.C.A. § 55-10-

403(a)(1). Because the judgm ent clearly states as a special condition that the appellant’s

license is revoked for a period of three years, this issue is moot.

Accordingly, based upon a reading of the entire record, the briefs of the

parties, and the applicable law, this Court finds that the judgment of the trial court should

be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules . IT IS,

THEREFORE, ORDERED that the judgment of the trial court is affirmed pursuant to Rule

20. 

________________________________

JERRY L. SMITH, JUDGE

CONCUR:

________________________________

PAUL G. SUMMERS, JUDGE

________________________________

DAVID G. HAYES, JUDGE