FILED

August 21, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JULY 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 03C01-9707-CC-00293 

Appellee, * BLOUNT COUNTY

VS. * Hon. D. Kelly Thomas, Jr., Judge

PHILLIP WAYNE DAVIS, * (Driving Under the Influence, Fourth 

Offense, and Driving on a Revoked 

Appellant. * License, Second Offense)

*

For Appellant: For Appellee:

Natalee S. Hurley John Knox Walkup

Asst. District Public Defender Attorney General and Reporter

419 High Street

Maryville, TN 37804 Todd R. Kelley

(at trial) Assistant Attorney General

425 Fifth Avenue North 

Julie A. Martin, Attorney Second Floor, Cordell Building 

P.O. Box 426 Nashville, TN 37243-0493

Knoxville, TN 37901-0426

(on appeal) Philip Morton 

Assistant District Attorney General

363 Court Street

Maryville, TN 37804

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE
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OPINION

The defendant, Phillip Wayne Davis, entered guilty pleas to driving

under the influence, fourth offense, and driving on a revoked license, second

offense. The trial court imposed an eleven-month, twenty-nine-day sentence, with a

release eligibility date at seventy percent, for driving under the influence and

ordered a concurrent sentence of eleven months and twenty-nine days, with a

release eligibility date of seventy percent, for driving on a revoked license. The

defendant was fined $1,600.00. 

In this appeal of right, the defendant claims that the trial court erred by

sentencing the defendant to serve an effective term of "over eight months." We find

no error and affirm the judgment of the trial court. 

The underlying facts were stipulated:

The arresting officer observed the defendant's vehicle

traveling very slowly and almost striking a curb on

Foothills Mall Drive. A traffic stop was made and the

officer noticed that the defendant was unsteady on his

feet, had bloodshot eyes, and a strong odor of alcohol. 

The defendant could not perform simple field sobriety

tests. 

At the time, the defendant's license was in a revoked status. A breathalyzer

examination indicated that the defendant had a blood alcohol level of .12. 

The defendant argues that his crimes are not so severe in nature that

they require incarceration of approximately two hundred fifty-four days. He

contends that the trial court gave no reasons for increasing the sentence above the

minimum. 

When a challenge is made to the length, range, or manner of service
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of a sentence, it is the duty of this court to conduct a "de novo review ... with a

presumption that the determinations made by the court from which the appeal is

taken are correct." Tenn. Code Ann. § 40-35-401(d). 

Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (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 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). 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.
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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, forty-six years of age, has three prior convictions for

driving under the influence and four prior convictions for driving on a revoked

license. He has other convictions as well; at least two are felonies. Prior attempts

at alcohol abuse treatment have been unsuccessful. The trial court indicated some

leniency by suggesting that the defendant would serve "the minimum mandatory

one hundred twenty days before he's eligible for any kind of release or work

programs." Under all of the circumstances, the sentences imposed are fully

warranted. 

Accordingly, the judgment is affirmed. 

________________________________

Gary R. Wade, Presiding Judge 
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CONCUR:

_____________________________

Joseph M. Tipton, Judge

_____________________________

David H. Welles, Judge